On the one hand, the federal government continues to block marriage-like ceremonies for gay couples who want one. But on the other hand, it is planning to impose marriage-like financial responsibilities on gay couples – and opposite-sex couples – even if they don’t want them.
In an SMH opinion piece against this change, University of Sydney law academic Patrick Parkinson explains the change this way:
The big difference [between married and de facto], in NSW at least, is that the courts only divide the property [of former de facto partners] based on an assessment of the parties’ contributions to that property (including contributions as a homemaker and parent). For married couples, the court also looks at the future needs of each partner and their financial resources.
As Parkinson argues, there are good reasons why couples might want to choose not to get married, and as a result have fewer legal protections, but also fewer legal risks. They might not be sure that the relationship is long-term (de facto couples have much higher rates of relationship breakdown than married couples). They might be legitimately protecting the interests of other parties, such as the inheritances of children from previous relationships or, in Parkinson’s example, inheritances from other relatives who may have intended to keep the money in the family (though those people could use trusts to help avoid the money falling into the wrong hands).
As I have argued before, I think there is a case for the state to set out template legal relationships between couples that may go beyond what they would contract for themselves. But if there are no children involved, it is not clear that the state should be rewriting the obligations of couples who have not chosen to enter into a formal marriage relationship. The law may be able to help disentangle common assets, but otherwise it should be assumed that, financially at least, each party gets out of the relationship what he or she put into it.
Children do I think change things. Children usually involve one partner (usually the woman, of course) reducing workforce participation for the benefit of the family unit. But I think this counts towards giving the partner who looked after the kids compensation, rather than looking at their ‘future needs’ as occurs in marriage. Child support is a separate issue; this would be on-going.
Blurring the difference between marriage and other forms of legal relationship could have perverse consequences, as well as imposing unwanted terms on existing couples. It may discourage people from starting live-in relationships for fear that not just their heart, but also their bank balance, will be broken. And it undermines the rationale for real marriage, as it lessens the distinction between that and just living together. While I doubt these will be major effects – love and clear, calculating thinking tending to work against each other – each possibility counts against changing the current law.