Explainer: what legal benefits do married couples have that de facto couples do not?

Explainer: what legal benefits do married couples have that de facto couples do not?

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De facto couples still often have to go to great lengths to prove their relationship, unlike married couples, who need only furnish a marriage certificate.

Hannah Robert, La Trobe University and Fiona Kelly, La Trobe University

Opponents of marriage equality often say that married and de facto couples already have the same rights. To what extent is this true? And, in legal terms, how much do the differences matter?

In an opinion piece last week, former prime minister Tony Abbott claimed:

Already, indeed, same-sex couples in a settled domestic relationship have exactly the same rights as people who are married.

This isn’t true.

At the most fundamental level, same-sex couples do not have the right to marry and therefore do not have “marriage equality”. While de facto couples may be able to assert some of the same rights as married couples, they often have to expend significant time, money and unnecessary heartache to do so.

Marriage allows people to access a complete package of rights simply by showing their marriage certificate or ticking a box, and is based on their mutual promises to one another rather than proving their relationship meets particular interdependency criteria.

Unlike de facto relationships, marriage is recognised nationally and internationally.

Differences under law

The laws regarding de facto couples differ between states and the Commonwealth, and from one right to another.

For Centrelink purposes, you are a de facto couple from the moment you start living together; for migration law it is after 12 months of cohabiting (unless you have a child together or de facto relationships are illegal in your country of origin).

Under family law it is different again: a minimum of two years (unless you have a child together, have registered your relationship, or have made significant contributions to the relationship).

Where married couples use IVF, both spouses are automatically legal parents. But for de facto couples using reproductive technologies, their child’s parentage depends on whether a de facto relationship is proven to exist.

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 (with costs borne by your estate).

In all contexts, de facto relationships require significant proof, which means partners may have to provide evidence about their living and child care arrangements, sexual relationship, finances, ownership of property, commitment to a shared life and how they present as a couple in public. These criteria can be absent from a heterosexual marriage, but it is still deemed a marriage.

Despite the wording in the marriage ceremony that marriage “is the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”, it is up to married partners whether or not they share their finances, their housework, their childcare responsibilities, their homes or their beds, and how long they want to stay married.

‘Registered relationships’ – separate but equal?

Many states and territories have legislation permitting couples to register their domestic relationships – the exceptions are the Northern Territory and Western Australia.

To register, you first need to prove that you meet the criteria – for example, providing “personal or financial commitment and support of a domestic nature for the material benefit of the other”. Where marriage delivers rights based on a couple’s promises to one another, registered relationships still require proof that a relationship meeting the criteria already exists.

Such registered relationships are not reliably recognised overseas.

When does it matter?

While married and de facto relationships largely have equal standing before the law, only marriage is immediate and incontrovertible.

Difficulties for de facto couples arise from the complex inter-relationship between the “burden of proof”, institutionalised homophobia, and the sticky situations that can often arise in interpersonal or family conflict.

For example, a person in a de facto relationship might need to prove their relationship:

  • if their partner is very ill, in order to make decisions about their care and treatment (this can be prevented by having another piece of paper – a medical enduring power of attorney equivalent document depending on your state or territory);
  • if their partner who has died, in order to be listed as their spouse on a death certificate or to be involved in funeral planning (being listed on a death certificate is critically important when it comes to claiming superannuation payouts and myriad other issues); or
  • if their partner has died without leaving a will.

Sadly, the times when marital status matters most are likely to be times of grief, or high stress. To compound this, 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.

Unmarried de facto couples often experience difficulties attaining residency and/or working rights overseas. Married couples rarely experience these problems.

Same obligations, without the same right to wed

Same-sex couples have all the same obligations as married couples – to pay taxes, child support and so on. But they don’t have the ability to marry – to enjoy the symbolic and emotional effects of entering into a legal union with their partners before friends and family, or enjoy the legal security of having one document to confirm the legal status of their relationship.

Many heterosexual couples in Australia choose to live in de facto relationships. This is their right. Same-sex couples do not get to choose – they have no alternative.

The ConversationMarriage equality is about giving couples genuine choice about how they structure their relationships.

Hannah Robert, Lecturer in Law, La Trobe University and Fiona Kelly, Associate Professor, Law School, La Trobe University

This article was originally published on The Conversation. Read the original article.

The Conversation

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NSW Jewish Board of Deputies: Marriage Equality Motion – Sep 19 2017

Page 10


Marriage Equality Motion

This meeting of the Plenum of the NSW Jewish Board of Deputies

STRONGLY ASSERTS that Rabbis must continue to be able to conduct marriage ceremonies in accordance with Jewish Law as they see fit

REJECTS any attempt to impose a belief or value system on the Rabbinate or observant Jews or prescribe to them requirements that are in conflict with Jewish Law

OBJECTS to any attempt to silence or stifle legitimate and fair minded debate on the issue of marriage equality regardless of the position taken.

REAFFIRMS its commitment to freedom of religious practice and religious education in Australia.

ACKNOWLEDGES that that as a matter of Orthodox Jewish law (halacha), same sex marriage is not permitted


  • The question before Australia at the upcoming postal plebiscite is one relating to civil, not religious, marriage.
  • Australian law and society has long allowed for same sex relationships between consenting adults.
  • Many Jewish people are already in marriages that are recognised as such under Australian law yet are not recognised in Jewish Law.
  • Current laws prohibit persons, other than religious organisations, from discriminating on the basis of homosexuality or gender.
  • The NSW Jewish Board of Deputies represents the whole Jewish Community in NSW, including those who are LGBTI and their families, friends and loved ones.
  • Many couples in our community who are in committed, loving relationships are unable to have their relationship recognised by the state as a marriage in the same way that committed, loving relationships between heterosexual couples may legally be recognised.
  • The NSW Jewish Board of Deputies is committed to fighting all forms of discrimination on the basis of race, religion, homosexuality, gender and disability and to supporting all members of our community as they strive for equality under the law.


  1. To call on the Federal Government to ensure protections for practice of religious freedom and religious education;
  2. To support the elimination of discrimination against same sex couples under Australia’s civil law by extending legal recognition to marriages between same sex couples who choose to marry; and
  3. To support equal treatment under Australian law to same sex couples who choose to marry.

[Original document here]

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NSW Jewish Board of Deputies support same-sex marriage | Jewish News

NSW Jewish Board of Deputies support same-sex marriage

September 19, 2017

Joshua Levi

THE NSW Jewish Board of Deputies (JBOD) has overwhelmingly passed a motion calling for “equal treatment under Australian law to same-sex couples who choose to marry” at its monthly plenum tonight (Tuesday).

The motion, which only one person voted against in a room filled with more than 100 people, stated that the roof body of NSW Jewry “strongly asserts that rabbis must continue to be able to conduct marriage ceremonies in accordance with Jewish law as they see fit”, “rejects any attempts to impose a belief or value system on the rabbinate”, “reaffirms its commitment to freedom of religious practice and religious education in Australia”, “acknowledges that as a matter of Orthodox Jewish law, same-sex marriage is not permitted” but then noted that “the question before Australia at the upcoming postal plebiscite is one relating to civil, not religious, marriage”.

The motion also noted that the JBOD is “committed to fighting all forms of discrimination on the basis of race, religion, homosexuality, gender and disability” and that it will support “all members of our community as they strive for equality under the law”.

And finally, it resolved, “To call on the Federal Government to ensure protections for practice of religious freedom and religious education; to support the elimination of discrimination against same-sex couples under Australia’s civil law by extending legal recognition to marriages between same-sex couples who choose to marry; and to support equal treatment under Australian law to same-sex couples who choose to marry.”

Former JBOD president Justice Stephen Rothman said that he was proud to speak to the motion at the plenum tonight.

“Some members of our community consider same-sex relationships and morally repugnant, and that is dealt with in the motion,” Rothman said.

“We don’t have to approve same-sex relations, in order to approve same-sex marriage.

“In my view, in the case of members of the same-sex community they should be free to enjoy their commitment to each other in the same way that other can.”

Rothman also noted that although same-sex marriage is not legal in Israel, the Jewish homeland does recognise same-sex marriages that take place in America or other countries were same-sex marriage is legal.

“If it’s good enough for the Jewish state, it’s good enough for Australia.”

Jack Pinczewski, who stepped down from the JBOD executive last month, spoke in support of the motion.

“We owe it to our friends and families to take a stance on this matter,” he said.

“It’s a matter of fairness, and a matter of separation between church and state.”

The motion was drafted by JBOD president Jeremy Spinak, however his wife is in hospital expecting twins so he was not in attendance.

In a written message, Spinak said the JBOD was obliged to act in what it considered the best interests of the community, which was to support marriage equality.

“This is about vital members of our community being recognised,” Spinak wrote.

“They have every night to be recognised as married.

“It’s about standing for gay families, so that even if they would not be accepted halachically, they would be accepted in the community in which they live.”

However, he reiterated that he respected rabbis and members of the community who took a different view and had a right to be heard, without being labelled as homophobic or derided for their opinions.

Only one person spoke against the motion at the meeting. He claimed that people who are gay are “not equal”.

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Right now in Australia, there is a battle going on for the dignity and rights of people that happen to not be heterosexual.  The entire country is being asked to vote on the rights of one section of the community.  As Jews, we know too well the dangers of singling out one group of people, and refusing them the rights that are shared by all.  As Jews, we know too well the cost of silence in the face of discrimination and injustice.  We will not stand by in silence as part of our community is stereotyped, vilified, judged, treated differently.  We are all diminished when we discriminate against and demean the love between people based on their sexuality.  We are all strengthened when we support and uphold the rights of people to be treated equally.

We are proud to add our names to the growing list of supporters who recognise the right to love freely, and the right to be treated equally under the law.  We stand in support of same sex marriage in Australia.  Our community is diverse, and we owe it to all our members to know that they do not stand alone.

In a truly progressive and inclusive society, the rights of all people are respected equally. Currently in Australia the right to marry is denied to LGBTQI couples.  As Jewish Australians, we believe that there should be no law that discriminates against one section of our community.  We embrace diversity in our community and in society.

A no vote in this postal survey has no place in a pluralistic and secular country such as ours and would simply entrench discrimination against LGBTQI people.  We cannot say we believe in equality, but only in certain circumstances.  Therefore, we urge people to vote for fairness, respect and diversity.

Vote YES, so that we are all equal under the law.

To add your name to this list please email contact@aleph.org.au.


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National Council of Jewish Women of Australia: Statement on Same Sex Marriage

Statement on Same Sex Marriage

National Council of Jewish Women of Australia supports same sex marriage as part of its stand against discrimination. Based on the human right to equality, we believe that civil marriage under the Marriage Act should be available to all people, regardless of their gender, sexual orientation, ethnicity, religious affiliations and beliefs. We agree with the Executive Council of Australian Jewry that amending the definition of marriage in Australian civil law will not affect religious freedoms for those who believe in the traditional definition of marriage.

We encourage our members and community to take part in the plebiscite and promote equality and reduce discrimination. It is our hope that Australia will join the growing list of over 20 countries around the world where same sex marriage is legally recognized, including Canada, Denmark, Finland, France, New Zealand, the United Kingdom and the United States, in order to create a modern, fair and just society.

Victoria Nadel & Sylvia Deutsch OAM
Acting National Co-Presidents

Miriam Bass, President & Board
NCJWA (Vic) Inc

NCJWA Statement on Same Sex Marriage - 15 Sep 2017

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Lyle Shelton exposed for falsely blaming marriage equality for the failings of a London Jewish school

Australian Christian Lobby Managing Director Lyle Shelton is using a story about a Jewish private school in London to exemplify a so-called “consequence” of allowing same-sex couples the right to get married.

On Sky News[1] (Sep 3 2017; 8:27) Lyle Shelton said:

The school in London, the Jewish school which doesn’t want to teach their children these radical concepts, lost those rights. They failed three Ofsted tests. That’s the authority that regulates schools there.

On ABC Radio National Drive[2] (Sep 7 2017; 2:09) Lyle Shelton said:

In the UK the Jewish school was fine to teach their children what they believe the Jewish religion teaches about marriage. After same-sex marriage change, that school has failed 3 Ofsted tests – this is the government regulating authority – because it won’t teach this sort of material.

This story was reported on June 26 2017 by the Independent[3]:

A private faith school in London has failed its third Ofsted inspection for refusing to teach its pupils about homosexuality.

Inspectors visiting Vishnitz Girls School in north London last month said the Orthodox school does not give pupils “a full understanding of fundamental British values”, The Telegraph reported.

Pupils were not taught about LGBT issues such as “sexual orientation”, which are in breach of equality laws.

The story continued:

Ofsted makes clear that schools are not expected to “promote” ideas about sexual orientation or gender reassignment, but they are expected to “encourage pupils’ respect for other people, paying particular regard to the protected characteristics set out in the 2010 Equalities Act”.

Shelton incorrectly asserts that the school was not able to teach their version of sexuality and marriage after same-sex marriages became legal in March 2014.[4]  Provisions in the Equality Act 2010[5], under which sexual orientation became a protected characteristic, and which predates the Marriage (Same Sex Couples) Act 2013, in fact explicitly states that the school has this right.

The school can’t get away with ignoring the law of the land, as if it doesn’t exist.  They failed to meet the standards because they refused to teach about sexuality.  A review of the audit reports, available on the Ofsted website[6], shows that the issue of teaching sexuality is only one of numerous standards that the school failed to meet.

In fact, the school had also failed to put in place the correct procedures for the safety of children.  That is, there was no system in place for reporting neglect or abuse of the students.  This is something that should be of great concern to all, and certainly an urgent need to be addressed as religious schools struggle with child sexual abuse.  Shelton makes no mention of these failures, nor does he mention any of the other many failures of the report.

With this in mind it is difficult to understand how the circumstances of this Jewish school in London are a direct or indirect consequence of changes to marriage laws.

These reports highlight the issues that the school was facing.  More important than the fact that they aren’t covering their responsibilities regarding equality and gender education is that the school has failed to meet the criteria for providing a safe environment for the children.  They fail to have policies in place that require the school to report incidents of abuse and neglect.

The safety of the children we would hope is paramount in any school, for it to fail in the basic understanding that they need protection should surely be the rally call, not whether or not they’re taught about sexuality.

The Equality Act was put into place in 2010 and schools in the UK received advice regarding the implications of the Act in the document called “Equality Act 2010: advice for schools”.[7]  That advice was published in 2013, and more importantly the advice notes:

As far as schools are concerned, for the most part, the effect of the current law is the same as it has been in the past – meaning that schools cannot unlawfully discriminate against pupils because of their sex, race, disability, religion or belief or sexual orientation.

This is important. It is clear that the laws already made it illegal for schools to discriminate on the basis of sexuality.  To connect the Equality Act of 2010 with Marriage Equality coming about in 2014 is mischievous at best and disingenuous to say the least.

The advice goes on to make this very generous concession to religious schools in regard to their view on human sexuality:

Schools with a religious character, like all schools, have a responsibility for the welfare of the children in their care and to adhere to curriculum guidance.  It is not the intention of the Equality Act to undermine their position as long as they continue to uphold their responsibilities in these areas.  If their beliefs are explained in an appropriate way in an educational context that takes into account existing guidance on the delivery of Sex and Relationships Education (SRE) and Religious Education (RE), then schools should not be acting unlawfully.

It goes on to state:

However, if a school conveyed its belief in a way that involved haranguing, harassing or berating a particular pupil or group of pupils then this would be unacceptable in any circumstances and is likely to constitute unlawful discrimination.

In other words, the school is required to teach the full range of human sexuality, but on top of this it can also teach what its beliefs are regarding the moral position of its faith.

In summary, Lyle Shelton has deliberately twisted and distorted the facts in an attempt to mislead people to believe this Jewish school failed its three Ofsted tests as a direct consequence of allowing same-sex marriage.  His tactic of misusing news stories to substantiate his own homophobic agenda demonstrates the lengths the Australian Christian Lobby will go to to make the grotesque claim that allowing same-sex couples to get married will lead to the destruction of society.


[1] https://www.youtube.com/watch?v=WWK31X2gLSA&t=8m27s
[2] http://www.abc.net.au/radionational/programs/drive/same-sex-marriage-panel/8883574
[3] http://www.independent.co.uk/news/education/education-news/private-jewish-school-lgbt-issues-fail-ofsted-inspection-vishnitz-girls-london-orthodox-sex-british-a7809221.html
[4] http://www.bbc.com/news/uk-26793127
[5] http://lgbt.foundation/Your-rights/the-equality-act-2010
[6] https://reports.ofsted.gov.uk/inspection-reports/find-inspection-report/provider/ELS/138516
[7] https://www.gov.uk/government/publications/equality-act-2010-advice-for-schools

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The hypocrisy within the Jewish community of calling for a “respectful” debate (or silence) on Marriage Equality

On Monday September 4 2017 the Rabbinical Council of Victoria (RCV) issued a statement advising citizens to vote No in the upcoming federal government postal survey on marriage equality.  A backlash to this statement ensued, with no less than Rabbi Daniel Rabin, President of the council that issued the statement, and the Executive Council of Australian Jewry distancing themselves from the aforementioned statement.

On Wednesday the Jewish Community Council of Victoria (JCCV) issued a statement calling for “a respectful debate in the lead up to the same sex marriage survey”.

Also on Wednesday Rabbi Yaakov Glasman, Senior Rabbi of the St Kilda Hebrew Congregation and President of the Rabbinical Council of Australia and New Zealand, issued a statement explaining his rationale for participating in a position of silence on the postal survey.

On Thursday Rabbi Daniel Mirvis, Senior Rabbi of the Mizrachi Centre, issued a statement saying of the upcoming postal survey: “I plan on remaining silent on the matter”.

On Friday Rabbi James Kennard, Principal of Mount Scopus Memorial College issued a statement urging “all who choose not to remain silent to ensure that all comments, on all sides, are made with respect, sensitivity and understanding”.

By calling for a “respectful debate” the underlying message being sent is that debate must be respectful over whether the Marriage Act should continue to exclude same-sex and other non-heterosexual couples.  Ultimately this amounts to insisting on a polite conversation on the merit of legalised discrimination.

Engaging in silence on a matter of discrimination amounts to tacit endorsement of the status quo.

But what if the topic of conversation were not Marriage Equality, but instead the banning of non-medical circumcision, the banning of religious slaughter of animals, government support for BDS, or the removal of religious and racial protections?

Would it still be acceptable to have a debate, or maintain silence, on any of these topics, respecting the underlying premise of each issue?

Would Jewish community leaders stand around and silently tolerate the wider community respectfully debating the merits of these topics, with a laissez-faire approach to the conversations?

Probably not.

Yet it’s acceptable for some senior Jewish Community leaders to insist on tolerating a “respectful debate” or maintaining a silence over whether the government can continue to enshrine discrimination in the law against a marginalised and highly vulnerable minority group for no good reason.

And this isn’t double standards?  Where is the respect in that?

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JCCV Calls for Respect and Decency in Same Sex Marriage Debate

JCCV Calls for Respect and Decency in Same Sex Marriage Debate
06 September 2017

The Jewish Community Council of Victoria (JCCV) calls for a respectful debate in the lead up to the same sex marriage survey.

JCCV President Jennifer Huppert stated, “We call for respectful behaviour from everyone, regardless of their views and beliefs on same sex marriage, and remind community organisations, community leaders and members of our community of the JCCV policy on respect when engaging in the debate.”

The JCCV policy on respect:

3.7.1 ACKNOWLEDGES the distinctive character of the Victorian Jewish community as part of the Jewish people worldwide, with a shared history, culture and religious tradition.

3.7.2 RECOGNISES that irrespective of the common traits that bind us as a community, Victorian Jewry is also diverse and pluralistic and that this is reflected in different, often strongly held views, on a range of issues affecting the Jewish and larger communities.

3.7.3 CALLS FOR respect for any such differences, while affirming that disagreement is only permissible in ways that do not vilify other persons or their views.

3.7.4 CALLS FOR abstention from any public or private conduct that incites hatred against, serious contempt for, revulsion, vilification or severe ridicule of, another person or group on the ground of their identity (including race, religion, colour, disability, sexual orientation, gender and national origin) or views of that other person or group.

Ms Huppert stated, “It is not acceptable to denigrate, insult or intimidate people, simply because they don’t share your views. Vulnerable people, especially young LGBTI people, must feel included in the community, supported and embraced.”

If you feel in the need of support, please contact:

Switchboard Victoria (LGBTI): 1800 184 527
Beyond Blue: 1300 22 4636
Jewish Care: 03 8517 5999

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Rabbi James Kennard calls for respect when commenting on same-sex marriage survey

I will not be making any comment on the Same-Sex Marriage survey, or on the various public statements that have come from members of the community, since it is not my role, as a Rabbi, or a Principal or even a humble citizen to tell any other person how to vote.

I would urge all who choose not to remain silent to ensure that all comments, on all sides, are made with respect, sensitivity and understanding.

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Rabbi Daniel Mirvis issues “statement” on marriage equality postal survey

7 Sep 2017 Mizrachi Centre non-statement on marriage equality

ט”ז אלול תשע”ז
7 September 2017

Dear Members,

Many of you will have seen statements by different Rabbis and Rabbinical bodies in the last couple of days about the upcoming postal survey.

I have not yet made any public statements and I plan on remaining silent on the matter.  This is because I do not see it as my role to tell you or anyone else how to vote.  Those who wish to seek my personal guidance are welcome to do so, as with any other matter.

The issues being discussed are very real and very personal for a number of members of our community.  I encourage everybody to be careful with their words and actions so that we as a community remain respectful and welcoming to all.

Shabbat Shalom

Rabbi Daniel Mirvis
Senion Rabbi

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