Same Gender....Same Rules?

The debate regarding the acceptance of same gender marriage has focussed, not unexpectedly, on issues of equality, tradition, the social status of marriage and the acceptance (or otherwise) of homosexuality. As a lawyer, however, there is perhaps something missing in the debate - and that is, what is marriage in Australia in 2011?

Marriage is, essentially, a construct of the law. This seems obvious, given that it is the law which proscribes same gender marriage. But it is a construct which plainly has social ramifications. It is the foundation of the unit of society which for the most part builds communities - the family. The family is the by-product of the procreative capacities of opposite gender relationships. Whatever social construct the "family" is, it cannot exist without people; and people come from procreation. That fact is immutable.

So, the argument goes, you expand the construct of marriage to beyond basic procreating capacities, then you create, as a by-product, different social constructs, i.e. not a family.

But does that argument remain valid in 2011 Australia? Opposite gender couples remain childless. Same gender couples can still procreate, although not within the strict confines of their relationship. Families are created as varied as the humans which occupy them.

The idea that same gender marriage dilutes the capacity of Australians to form families is invalid. So what of the type of family? Are people with two dads or two mums, or two dads and a mum who lives 3 suburbs away, any less advantaged that those with a mum and a dad? For the argument, we can assume the heteronormative paradigm that having role models of different genders is good for raising kids. So do same gender marriages deny this? Let's assume they do. But if we make that assumption, we must also make the same assumption that the separated, divorced or widowed parent, albeit heterosexual, may do exactly the same thing. And, of course, they don't, any more than gay parents would.

A Canadian couple recently had a baby and intend not to reveal the baby's gender to anyone other than immediate family, because they wish to raise the baby/child without any gender bias. Before accusations are thrown that gay couples will raise wierdo kids, perhaps the straight camp could look to itself first?

I've wracked my brains to think of a reasonable argument against same gender marriages. The only one is that marriage, per se, is a dead or dying institution, so why would same gender couples sign up for it? If you can think of one, let me know.

You can divorce, but...

In Australia, the concept of no-fault (and therefore a simple) divorce was introduced by the Family Law Act in 1975. And despite criticisms by conservative politicians and commentators, most notably Bob Santamaria during the 1980s, the easily obtained divorce has been a feature of our family law.

Recent murmurings from Federal Opposition Leader Tony Abbott have suggested family lawyers look at no-fault divorce or, at least, the easily obtained divorce. Recently, the Centre for Marriage Studies in the US has proposed a novel way for separating couples to be more proactive in their divorce arrangements. Effectively, absent circumstances making such a process non-viable (such as in domestically violent or abusive relationships), married couples would not be entitled to a decree of divorce until they had first established a co-parenting regime (agreed or otherwise) and property / maintenance settlement. Without introducing fault into the equation, separating couples would thereby be given greater incentive to resolve their differences without, at least, the delay that accompanies litigation.

The proposal deserves consideration. The obvious difficulty at the outset is that marriages (which require a divorce to end) would be differently treated from de facto relationships, which can end upon a whim. Having said that, divorce is still something married couples must do to end the marriage. If we expedite a conclusion to conflict for some of those people, surely that is a good thing?

Property settlement or property investment?

It is not uncommon for parties to amicably resolve any dispute they have regarding parenting, but continue the fight, so to speak, when it comes to property and maintenance or child support. increasingly, however, it has been revealed that property disputes can be just as emotionally draining on parties (and therefore children) as parenting disputes.

Each case is different and turns on its own facts. And the Family Law Act carefully sets out the 4 step process by which property matters are determined and the 5 step process by which maintenance matters are determined. However, that process is litigious and does not involve compromise.

Compromise is the cornerstone of property settlement as property investment. An early resolution to property disputes is an investment in:
* your peace of mind;
* your ex partner's peace of mind;
* you childrens' peace of mind;
* a happier co-parenting atmosphere; and
* less money wasted on lawyers - which is a real investment.

If parties looked at their property settlements as an investment, they are more likely to achieve long term satisfactory outcomes for all.