I’ve been getting steadily more bored and disinterested in current discussions about marriage in Australia. The debate about gay marriage is important in terms of equality, and I support equality. What I don’t support is stupidity and pointlessness. I wrote about the pointlessness of marriage laws five years ago and it has become more pointless since then.
Few of the participants in the marriage debate seem to recognise the difference between the social custom and the legal contract. The social custom of marriage exists in many cultures and has probably existed since pre-history. The legal contract is becoming increasingly irrelevant as de facto status is broadened and becomes more like marriage in its legal implications.
As a social custom, marriage is a form of domestic relationship that, historically at least, has been mostly monogamous (for women), mostly about property and inheritance and mostly heterosexual. These are social conventions that change over time. In contemporary western societies, homosexual relationships are common and are rapidly becoming viewed by the majority as normative and unremarkable.
Personal relationships in general are seen as a private social matter of no interest to the state. The state does not define or legitimise relationships, or the freedom to have children. You can fuck whoever you want and have as many children as you want. Parents increasingly have legal responsibilities to their chidren and to the state in financially providing for their children, but partners have few legal responsibilities to each other.
As a legal contract, marriage is a deal that a man and a woman jointly enter into with the state. They pay some money to the state (getting married and divorced costs about $1000 minimum just for the paperwork) and in return receive a package of legal entitlements. These include certainty under the law about the division of assets should the marriage end, tax concessions, the parties being treated as a couple in terms of welfare entitlements (which usually means accepting less than the equivalent payments for two single people), and the right to be defined as next of kin for inheritance and health emergency purposes.
Some of these legal arrangements can be obtained separately by anyone, for example by making a will, or appointing a power of attorney. In simple financial terms, I don’t see the value in marriage for the individual. It benefits the state as it allows the state to lessen what it pays to individuals (depending on circumstances) as it establishes and advises that partners are primarily responsible for providing for each other.
The state has, in recent years, significantly broadened the definition of de facto and established that it is now possible in Australia to have multiple legal de facto partners. This fact seems to have been missed by most participants in the marriage debate. I would have thought it would have conservatives like Kevin Andrews frothing at the mouth. Maybe someone should tell him?
The Family Court already acknowledges that individuals may have multiple de facto partners. I’m not sure about the ATO. Given that it can’t even build a platform independent online tax return system a decade after such things are perfuctory, I doubt it has forms with the appropriate number of partner boxes.
In a new book Andrews, like his colleague Cory Bernardi, argues that accepting gay marriage is a slippery slope to accepting group marriage. Conservatives appear to be worried that extending the rights of the many to include the few will somehow damage an intangible asset held by the many – the social status surrounding the custom of marriage. But the state does not control the custom of marriage or its social status.
The state only controls the legal status of marriage. Consequently, conservatives are really arguing that the package deal of legal conditions that form marriage should be denied to some people. Given that most of these same conditions are also included in being in a de facto relationship, this legal obfuscation is petty, pointless and trivial. It will have no significant financial impact on the state. Homosexual de facto relationships are recognised by the state for taxation, welfare and other purposes.
Conservatives seem to be broadly deluded and think that laws define relationships. They don’t. As citizens we’re free to associate, co-habit, fornicate and reproduce with whoever we like. Somehow the conservatives seem unaware of this fundamental fact of life. While monogamous(ish) couples may be defined as a binary for tax purposes by the de facto laws, polyamorous people may be more fortunate. A threesome living together, for example, may be invisible to the law at present, as the (historically morally conservative) state cannot fathom how such an arrangement could exist. Would it fit on the form? I don’t think so.
Libertarians and others in the radical, not conservative, right of politics argue that the state is destroying marriage:
What does marriage mean today? To some, it means permanent residency in Australia; to others, it means a tax break; to others, it means a baby bonus; to others, it means inheritance. It also does not carry much weight – the idea of a union ‘for life’ is disappearing throughout society. Marriage is becoming a temporary arrangement, whereby a man and a woman can join in a union for a few years, one gets an Aussie passport, the other gets some nice inheritance, and both get tax breaks. Meanwhile, neither of them ‘excludes all others’ and they eventually get divorced, meaning that the whole ‘for life’ thing didn’t happen either.
I agree with these ideas and the view that marriage should be considered only a social custom that is voluntarily enacted as a private arrangement between individuals, whatever their gender or sexual preference. It should have no legal status and the state should rescind its marriage laws. It may be necessary to rename and readjust de facto to define how domestic cohabitation (which is related to but not analogous to forming an economic partnership) is treated by tax law, but that should be the extent of the state’s recognition of and involvement in regulating personal relationships.
As I have also previously argued, for a number of reasons it may be in your best interests to remain legally single. Where you live, who you socialise with and who you fuck is none of the government’s business. As someone who alternates between monogamy and polyamory as it suits me, I find the obsession with defining the legal status of relationships bizarre. It serves no purpose, so why bother?
The marriage divide Andrews identifies is a product of culture. Marriage is viewed by the middle class as a fashionable social accessory and is thus widely practiced. For the low income underclass, saving the money to pay for the paperwork to be legally married is a fundamental barrier. The practical meaningless of the symbolism makes it pointless to obtain: it is an intangible luxury item they cannot afford. The legal contract of marriage is of no benefit when you are already entirely financially dependent on the state, and lack the personal resources to maintain stable social relationships.