As the debate around the Australian Marriage Law Survey rolls on, there has been plenty of talk on both sides about rights and consequences.

Extending the opportunity to marry to same-sex couples has strong symbolic value for them.

But what practical effect would same-sex marriage have on the rights of same-sex couples?

Former prime minister Tony Abbott claims that "same-sex couples in a settled domestic relationship have exactly the same rights as people who are married".

Is Mr Abbott correct? RMIT ABC Fact Check finds out.



The verdict

Mr Abbott's claim is exaggerated.

On paper, same-sex couples in a settled relationship do have the same broad set of rights as opposite-sex couples who are married.

This is because, over more than a decade, federal, state and territory governments have made real efforts to standardise the rights of same-sex, de facto and married couples.

At a federal level, the Rudd government introduced significant reforms over a broad range of policy areas in 2008.

And all states (except WA) and the ACT allow same-sex couples to obtain official registration of their relationship.

This makes it easier for them to prove their relationship when asked.

Meanwhile, IVF treatment is open to same-sex couples Australia-wide, and same-sex couples (outside of the NT) can adopt children.

But on a practical basis, same-sex couples have to deal with administrative hassle and uncertainty that opposite-sex married couples never have to face.

Those who have not (or cannot) register their relationship may have to prove their de facto status when dealing with hospitals, Centrelink and other areas of government.

This can lead to same-sex couples having to disclose personal information to strangers or faceless government officials, which can be invasive and traumatic, particularly during a partner's illness or if some branches of the family do not get along.

By contrast, married people can simply use their marriage certificate as proof of their relationship.

Same-sex couples also must hope that government officials in health, welfare or other areas understand the complexities of the law around de facto relationships and will apply it correctly.

A married couple knows their relationship will be recognised even in the most shambolic of bureaucratic systems.

What is a "settled domestic relationship"?

There is an important qualifier in Mr Abbott's statement: he refers to a "settled domestic relationship".

Mr Abbott's office was contacted for more detail about his claim. No response was received.

Fact Check finds that, "settled" refers to the type of relationship recognised in Australian law as a "de facto relationship" or a "registered relationship".

There is no hard and fast rule about whether someone is in a de facto relationship, and how this is determined can vary (for example, the rules for Centrelink benefits can differ from those used in immigration matters).

The Commonwealth Acts Interpretation Act 1901 guides the interpretation of many Commonwealth laws, and includes a definition of "de facto relationship".

Under this definition, a person is in a de facto relationship with another person if they and their partner:

are not legally married to each other;

are not legally married to each other; are not related by family; and

are not related by family; and have a relationship as a couple living together on a genuine domestic basis.

Whether the couple is living together on a genuine domestic basis is determined by "all the circumstances of their relationship" including "any or all" of:

the duration of the relationship;

the duration of the relationship; the nature and extent of their common residence;

the nature and extent of their common residence; whether a sexual relationship exists;

whether a sexual relationship exists; the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

the degree of financial dependence or interdependence, and any arrangements for financial support, between them; the ownership, use and acquisition of their property;

the ownership, use and acquisition of their property; the degree of mutual commitment to a shared life;

the degree of mutual commitment to a shared life; the care and support of children;

the care and support of children; the reputation and public aspects of the relationship.

By referring to a "settled domestic relationship", Mr Abbott excludes from his claim those couples who may not meet the de facto criteria (for instance, if they have only recently met and do not live together).

Another way that a same-sex couple could be shown to be in a "settled domestic relationship" is by registering their relationship under state or territory law. The terminology differs by location as follows:

This option of a registered relationship is not available to residents of Western Australia or the Northern Territory.

In Victoria, a couple are only able to register their relationship if they can show that they "provide domestic support for each other" and are "committed to each other both personally and financially".

What are "rights"?

When it comes to Mr Abbott's reference to "rights", Fact Check takes this to mean the legal right to be considered as a couple or member of a couple for the purpose of family law, financial arrangements, healthcare and other official matters.

Proponents of same-sex marriage argue that marriage is a right in itself.

However, it would be nonsensical to take Mr Abbott's description of "rights" to include "marriage", given the claim would be contradictory.

Rights under Commonwealth law

A significant series of reforms by the Rudd government extended a number of rights held by married couples in Commonwealth law to same-sex and opposite sex de facto couples.

These reforms covered areas including family law, social security, veterans affairs, superannuation, healthcare, immigration and industrial relations.

More than 80 laws, ranging from the Family Law Act 1975 to the Defence Service Homes Act 1918, were amended.

The main changes involved the inclusion of same-sex couples within the definition of de facto couples, and reducing or eliminating any distinction between de facto and married couples for the purpose of Commonwealth law.

In announcing the reforms in April 2008, then attorney-general Robert McClelland said:

"The Rudd government is delivering on its election commitment to introduce legislation to remove same-sex discrimination from a wide range of Commonwealth laws… The changes will provide for equality of treatment under a wide range of areas, including superannuation, taxation, social security, workers compensation, pharmaceutical benefits… It will also ensure that, from the point of view of Australia, we now complete the picture - discrimination on the basis of sexuality has long been removed from State and Territory laws, and this will complete the picture by introducing long overdue reforms to remove discrimination from Commonwealth laws."

Rights traditionally held by married couples that were extended to same-sex couples focused on areas including:

division of property and maintenance payments in the event of relationship breakdown

division of property and maintenance payments in the event of relationship breakdown recognition of parental status

recognition of parental status social security and veterans affairs payments

social security and veterans affairs payments tax thresholds

tax thresholds Medicare and Pharmaceutical Benefits Scheme safety nets

Medicare and Pharmaceutical Benefits Scheme safety nets superannuation benefits

superannuation benefits aged care assets tests

aged care assets tests workplace rights including parental leave, personal, carers and compassionate leave.

Marriage was specifically excluded from the reforms.

Asked by a reporter whether discrimination would still exist in the absence of a "ceremony", Mr McClelland responded:

"No, these reforms won't change the Marriage Act. Consistently with Labor Party policy we made it clear before the election that the government regards marriage as being between a man and a woman; and we don't support any measures that seek to mimic that process".

In May 2013, Mr Rudd, then a backbench MP, began to advocate for same-sex marriage, suggesting a conscience vote take place in Parliament or "a national referendum at an appropriate time...which would also have the added advantage of bringing the Australian community along with us on an important social reform for the nation."

Mr Rudd referred to his government's 2008 reforms and said that his proposal on same-sex marriage was an attempt to "close the remaining gap".

In WA, the law applying to same-sex couples (and other de facto couples) on family law issues is governed by state (not Commonwealth) law.

However, WA broadly instituted similar reforms via the Acts Amendment (Lesbian and Gay Reform) Act 2002.

There remain some subtle differences between the rights available to same-sex couples and those of the opposite sex.

In an opinion piece for The Conversation, Associate Professor Fiona Kelly and Hannah Robert, of La Trobe University, pointed out:

"Couples who are or were married must file for property and/or spousal maintenance proceedings in the Family Court within one year of finalising a divorce, but have the option to agree to an extension of time in which to file. No such provision exists for de facto couples; they must file proceedings within two years. In many states, a new marriage nullifies an existing will, unless that will was quite specifically worded. This is not the case when you enter a new de facto relationship. In the latter situation, if you die before making a new will, a court might need to decide how your assets are allocated."

Countries of the world which have legalised same-sex marriage at the time of publication. ( ABC Fact Check )

Rights under state law

The states and territories also brought in reforms that removed discrimination against same-sex couples.

In a 2007 report on the rights of same-sex couples, the Australian Human Rights Commission pointed to reforms introduced by the states and territories between 1999 and 2006, saying:

"The effect of these reforms is that, in almost all circumstances, same-sex and opposite-sex couples can access the same state and territory financial and work-related entitlements."

Nevertheless, in September 2015, the South Australian Law Reform Institute issued a report that found there were "over 140 pieces of legislation that, on their face, discriminate against individuals on the basis of sex or gender diversity."

The institute's president, Professor John Williams, told Fact Check:

"When we did the review of the South Australian statute book we did find many examples of different treatment based on sex and gender. Many have now been remedied by placing the relationships on the same footing – where possible."

By law, state health services are supposed to treat couples equally. A spokesperson for NSW Health said:

"In the NSW health system, patients in a de-facto, same-sex or heterosexual relationship are treated in the same way as a patient who is married. For example, if one partner in a de-facto relationship lacks capacity, their de-facto spouse can make certain health decisions for their partner, in the same way that if one party in a marriage lacks capacity, their spouse can make certain health decisions on their behalf."

In all states and territories other than in WA and the NT, couples can register their relationship, making it easier for them to prove their status.

In most places, it is a straightforward process for a same-sex couple to register.

However, in Victoria, couples have to show that they "provide domestic support for each other" and are "committed to each other both personally and financially".

This is a hurdle that opposite-sex couples do not have to clear before they can get married.

And while states have sought to standardise laws between same-sex and opposite-sex couples, in practice, anomalies can occur.

For instance, in 2016, a British same-sex couple, married under English law, travelled to South Australia on their honeymoon.

One of the couple, David Bulmer-Rizzi, died during their trip.

Because Australian law does not recognise same-sex marriage, the marital status entry on Mr Bulmer-Rizzi's death certificate stated "never married" and Mr Bulmer's husband was apparently not treated as next of kin by local authorities.

Following this incident, South Australia in August 2017 brought in its relationships register and changed the regulations around births, deaths and marriages so that same-sex partners could be referenced on a death certificate.

The SA Premier Jay Weatherill said:

"It will mean people will have a clear avenue to have their relationship legally recognised, but also will make the process of accessing their entitlements and asserting their rights, including in situations of a medical nature, far simpler."

Having children

Liberal Senator Matt Canavan, who is campaigning against same-sex marriage, recently argued that "as long as we have been writing about it, marriage has been about having children, or the even more beautiful concept of becoming a mother, not about love alone."

Whatever the truth of that statement, under current Australian law same-sex couples are free to access fertility treatment and, in most parts of the country, can also adopt children.

Professor Michael Chapman, president of the Fertility Society of Australia, told Fact Check:

"IVF treatment is available to all couples in Australia regardless of marital status or whether they are a same-sex couple. However, Medicare benefits and private healthcare rebates are only available where the person obtaining IVF services has a medical condition that impacts fertility. Whether a person qualifies is based on medical criteria, not marital status or sexuality."

Following South Australia's change to its adoption laws in February 2017, same-sex couples can adopt children in all parts of Australia except for the Northern Territory.

And things are changing there, too.

Territory Families, the responsible NT Government department, told Fact Check:

"The Northern Territory is the only jurisdiction which does not allow same-sex adoption… [T]he issue of same-sex adoption is one the government is committed to rectifying. Work has already commenced on the amendments, and it is anticipated they will be introduced into Parliament before the end of the year."

Given current NT law requires a couple adopting a child to be a married "man and woman", a change to Commonwealth law to allow same-sex marriage would not, in itself, allow adoption by a married same-sex couple in the NT.

Practical problems

While the law has, in most cases, extended rights to same-sex couples, on a practical basis these couples face administrative hassle and uncertainty that married opposite-sex couples do not face.

Couples who have not registered their relationship may have to, on demand, prove that their relationship exists and meets the criteria for de facto status.

And it may be difficult, both emotionally and practically, to provide this information in urgent or traumatic circumstances, such as when a loved one falls ill or dies.

According to Associate Professor Kelly and Ms Robert:

"There are many examples of a couple's "de facto" status being challenged by one partner's family of origin. Marriage on the other hand, is undeniable."

And even if they have proven their status, a same-sex couple must rely on the bureaucracy (government and its employees) to fully understand the law in relation to the recognition of same-sex couples and apply it correctly.

Professor Williams, of the South Australian Law Reform Institute, said:

"There is a non-legislative story here to be told. How those same-sex families are treated as they go about their daily lives is perhaps the most significant point."

And mistakes can happen.

In Tasmania, Ben Jago lost his partner to suicide but says he was not recognised as next of kin by authorities because the couple's relationship was not officially registered.

In fact, Tasmanian law recognises same-sex relationships without registration.

Mr Jago's case is currently before the Tasmanian Anti-Discrimination Tribunal.

Long time same-sex marriage advocate Rodney Croome told Fact Check:

"In the absence of marriage equality, it's too easy for people in authority to assume same-sex partners don't have the same rights and responsibilities as different-sex partners. In other words, the problem with laws like the [Tasmanian] Relationships Act is that no matter how fair they are they will never be enough in the absence of marriage equality."

Even those couples with a registered relationship may find it is not recognised outside their home state or territory.

"Unmarried de facto couples often experience difficulties attaining residency and/or working rights overseas," suggested Associate Professor Kelly and Ms Robert.

That said, neither is there any guarantee that foreign nations would recognise Australian same-sex marriage.

Sources