Forget the plebiscite — let's just scrap the Marriage Act

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To avoid the "Sex-Life Stasi" we should scrap the Marriage Act altogether and create private marriage contracts for all, says Kerry Cue.

DID WE GET LOST on the way home from the Sexual Revolution?

The answer has to be "Yes".

Here we are merrily working our way into a new millennium and the Government is still acting like some prim regulatory great aunt tut-tutting on and on about personal relationships. Isn’t it time we dumped the Marriage Act

Let’s start with the same-sex marriage kerfuffle. I totally understand why couples of any gender combination would want regulatory acknowledgement and kinship rights. But do not imagine for one minute that all gays, lesbians and others not included in the previous categories will vote for same-sex marriage if the plebiscite ever manages to limp into voting booths in Australia. And here are the reasons why.

The young same-sex couples will, I suspect, want legal acknowledgement and all the romance and glamour of a wedding. But once the certificate has been signed, the cake cut, the confetti swept up and the wedding dress or outfit stowed and turning stale with age, the idea of being legally married loses its gloss. Imagine we’ve leapt over our coy electoral reluctance and you belong to a same-sex couple now legally married and about to apply for a pension.

Currently, two gay males living together will receive two single pensions. This amounts to, currently, $797.90 each a fortnight. If that couple marries, when they apply for a pension they will receive $601.50 each a fortnight. Even the most dedicated gay rights activist has to consider self-interest when the end-of-earning-life stage is just over the horizon. Each of those extra dollars counts. Ditto for unemployment benefits. The current payment to a single citizen without children is $578.20 per fortnight. But a partnered citizen with no children – note the Department of Human Services wording – is entitled to only $477.70 a fortnight. That’s 100 bucks each less a fortnight. When you're counting pennies, $100 counts.

Some pension-aged married heterosexual couples have tried to separate by dubious means – say, using a false address – to get those extra dollars. And they could, if found out, end up in front of the Administrative Appeals Tribunal and be asked to give the overpayment back. But this is not the end of such indignities.

We have common-law marriages in Australia. A common-law marriage – also called a de facto relationship – applies to couples who are living together and present to family and friends as a married couple. Currently, the gay couple above would never be questioned on their married status even if they lived together and therefore they are entitled to the full pension or unemployment benefits. But once the same-sex marriage act is introduced, they will be living in a common law marriage and therefore only eligible for a married couple's pension or dole. It gets worse.

If that couple owns two houses, the situation edges into the murky mud of a legal quagmire. If they share the same main address they are deemed to be a common-law couple, then that second house should be subject to land tax. Why should only married couples pay land tax on a second property?

So our Government is really interested in how many "sleeps" you have at your partner’s house as this might turn you into a common-law married couple. And how many sleeps a week is that? Is this what we want? A government that insists on knowing how many sleeps we have with our partners? Do we really want the "Sex-Life Stasi" snooping around our lives? 

Currently, many heterosexual couples are in this legally dicey limbo. These are the post-divorce couples with two houses and sleepovers. The Australian Institute of Family Studies calls them LATs — living-apart-togethers. There are, at the last count, 1.1 million LATs in Australia. And the Tax Office is interested in their relationships. Are they a common-law couple? Do they claim the single pension rate? Should they pay land tax on the second house? There is another alarming legal time-bomb for this post-divorce-with-sleepovers heterosexual couple. If one partner dies, the other partner’s offspring can make a claim on the deceased’s will regarding assets, super, whatever. 

Meanwhile, the current Marriage Act is making fools of all heterosexual couples and it has been doing so for years. We go to the chapel, or park, or beach, or wherever to sign a legal document we have never read. What are your legal obligations when you sign that marriage certificate? I think most of us haven’t got a clue. 

We should scrap the Marriage Act. All individuals should receive the same legal rights regarding financial benefits. The government can produce a standard marriage contract and couples of any gender can opt in. Or couples can draw up their own private contract. Many already use a binding pre-nuptial agreement but it mostly applies to financial arrangements.

This contract should spell out all obligations. Finances will be shared in this way. This marriage will be one which, hopefully, produces and raises children. Or not. Young women today can end up in common-law relationships or even legal marriages assuming that they will have children but as soon as she hears the loud ticking of the biological clock and puts pressure on him, he’s outa there. I’ve known women in this situation. She’s made assumptions that weren’t in his contract. Even a clause stipulating that children will be reared in Australia might help clarify intent.

When going to the chapel, or wherever, is not the time to read the contract but it should be in writing and carefully read before the big day. We might be fools in love but if we scrap the Marriage Act and use private marriage contracts and make entitlements equal for every Australian citizen, living together or not, at least, when we marry we know our legal obligations and the government won’t become the Sex-Life Stasi making fools of us all. 

Kerry Cue is a humourist, mathematician and journalist. She is the best-selling author of 20 books. Read more from Kerry at

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