Why marry? (or, what are the legal ties of marriage?)

Why marry? (or, what are the legal ties of marriage?)

Teegan asks:

What does it actually mean to be legally married — in terms of finances, assets, what it means for both people if one does something wrong legally, etc — it seems a lot of people fall into these traps that they don’t even know exist which leads to breakdowns. Being informed of what you’re going into is key but there doesn’t seem to be any help anywhere on all the ‘legal ties’ of marriage.

As with any legal matters, always seek professional legal advice from a legal expert, that which I am not. I am however a Commonwealth appointed marriage celebrant, so I have a slither of input on the matter. The issue that rise up however is that different states, and of course, different countries, have different pieces of legislation

So as we talk about the legal side of marriage it’s merely my point of view, and your situation may not apply.

I’m also writing this on a quite important day for me – I’m in Sydney to marry a couple, who, when they got engaged were not eligible to be legally married in Australia, and today they marry legally. That’s obviously a massive milestone for them, and for the marriage laws in Australia. When they got engaged, both of their birth certificates said female, today, one of their birth certificates say he is now recognised a male. Thus, they are now eligible to marry.

For so many Australians, the right to marry, the ability to marry, and the meaning of marriage, has been so accessible that it’s like the air you breathe: something you don’t often think about. I know for Josh and Amy, this is something that they think about a lot.

What does it mean to be married outside of the law?

Marriage, outside of the law and in the English language, is defined as a formally recognised union of two people in a personal relationship. As a word it’s often used to describe two objects joined together. For example I am often married to my iPhone and Britt finds herself married to the Spell Designs website. But generally speaking, it’s about two humans being in a union. It’s that simple.

What does it mean to be legally married?

According to the Marriage Act, marriage in Australia is defined as a union between two people, entered into voluntarily, to the exclusion of all others, for life.

It doesn’t mean you now have sex, in fact sex is only limited by age and consent in Australia. And the consent part still reigns true in marriage. If one of you does not consent to sex, marriage doesn’t give the other right to take it.

Marriage doesn’t mean you’re having children – now or ever. It’s not the vessel for having children, nor is childbirth a requirement of marriage. Many families are birthing children in Australia without being in a marriage, and many in marriage never give birth, and everyone is ok with that.

Marriage does not grant you automatic citizenship, and in many so cases it doesn’t even grant you automatic immigration rights as well.

Marriage doesn’t grant you the right to a joint bank account, or their phone PIN code, or their password manager. Marriage doesn’t give automatic rights for each other to pillage the other one’s life. You retain the right to give the other person permission to enter your life and I know that Britt and I would be lost without a shared password list, and access to each other’s phones and social media. Not that we’re checking each other out, I don’t think I’ve ever logged into Britt’s Facebook account, but it’s affirming for our relationship and our trust between each other to know I could. Our marriage has those definitions because we decided on them, not because the law, society, or a church told us to.

So what does it mean to be married in a legal sense? It means that you are committed to being in that union for life. Once you enter that union, other laws and codes start to apply. We’ll get to them next.

What if we don’t get married?

A marriage recognised by the law is a little bit like insurance. You don’t know you need it until you need it. Many people, of different genders and gender combinations, have succeeded in living out their life together without legal recognition of their marriage. In fact, being in a de facto relationship, is not too far removed from marriage.

But, you can’t force a de facto relationship, you have to wait for the time period to kick in. And even then, people have successfully argued their way out of a de facto relationship because there’s no formal beginning of a de facto relationship and there’s no registration or official declaration of the relationship.

Most people in de facto relationships still have to go through property settlements and child-related court appearances.

The main reason you would want to move from a de facto relationship to a marriage is because in a marriage you don’t have to prove your relationship. It was proven on your wedding day, everyone signed a marriage certificate, and you both agreed to the definition of marriage being one that applied to you. When you’re de facto, every step of the way requires you to prove your relationship, regardless of what both of your genders are.

So we got married, what now?

Well you still need to work on your relationship every day, your childbearing situation is still your decision to make, you still have to seek each other’s consent for sex (in fact, despite popular opinion, if you never ever engage in sexual activity your marriage is still a valid one … an idiot celebrant tried to argue with me once that you must have sex, or “consummate the marriage” to finalise the marriage solemnisation … idiot). There’s a fairly high possibility you don’t get any farm animals, money, or property from each other’s family, unless they choose to give it to you out of a generous heart.

What you do get is the formal recognition of your relationship from the governing body of the society you live in, and trusting that your society isn’t North Korea or Iran, then that relationship is recognised worldwide as well. So if you’re married in Australia, you’re married everywhere else as well – with one condition: that your marriage meets that society’s definition of marriage. So if you’re a same sex couple married in the USA, in Australia you aren’t married. But if you’re a heterosexual couple married in Bali, your marriage is recognised everywhere.

But what are the benefits of a legal marriage?

Each Australian state has different visitation rules in hospital and in other medical scenarios, but if you’re married to the person receiving treatment then you’re the next of kin, you’re the emergency contact, you’re allowed in the room to see them first. If you’re not married then that right may fall to family members first.

Taxation and welfare legislation also treat married couples differently, and if you’re appearing in court, different courts will treat a married spouse differently. On these examples though, seek legal advice.

Marriage invalidates any previous wills you have, unless they preempt a marriage beginning, and in the absence of a will, your married spouse “gets everything” as they say. But get a will anyway, it just makes the whole process less stressful. If you love your spouse you will get a will 🙂

Common law also dictates that although you both may have separate bank accounts, and you could even live apart for some or all of your marriage, your partner’s health and financial wellbeing is your responsibility. If they fall into poverty, they’re your responsibility, and if you have a man flu, then it’s her responsibility …. sorry, I mean, it’s both of your responsibilities to help the other maintain a standard of living that is of an acceptable level.

Bonus tip: you both also have the opportunity to get a new last name!

Ending the relationship

A silly couple recently made the claim that if marriage equality passed through parliament that they would divorce because they didn’t want to have the same marriage a gay couple had. Idiots. However they stumbled upon an issue with some legal experts making it known to them that they would actually to be allowed to divorce because not only could they not prove that they had irreconcilable differences, but they had quite the opposite, they were in a committed union for life, they were just homophobic.

Being homophobic unfortunately does not exempt you from marriage.

Being in a union with irreconcilable differences does.

How you reconcile those differences is up to you, and your lawyers, so I’ll let you deal with those. But as mentioned earlier, you will need to agree on what happens to your property (land and other), your children and even your pets.

People in de facto relationships also need to formalise the end of their relationship if they have property, pets, children between them, but if it’s just an XBox and some toothbrushes you could probably figure that out on your own. You see, a marriage must end with a court order that the couple had proved that their union for life, could actually no longer be for life.

So, if you are planning on spending the rest of your life with your favourite human, then I highly recommend getting married.

The feature image for this post is by James Day from Josh and Amy’s wedding!