Plebiscite on Relationships

Andrew P. Street in his Sydney Morning Herald article this morning compared the proposal to have a plebiscite on gay marriage to the issues that surrounded “legalising divorce”. Whilst I agree with his basic premise, I do not know if he fully realises the public anger from many at the changes that took place in 1975.

I worked within our legal system both before and after Lionel Murphy managed to get through parliament the then new Matrimonial Causes Act which allowed people the freedom of leaving a marriage without the issue of fault arising. There was a great deal of angst at the time, perhaps more than there is now, about this “undermining the fabric of society”. The artificial concept of “constructive desertion” (when people who had been badly treated in a marriage, which they then left,  had to bare their soul and disclose their victimisation prior to any consideration of the right to equal sharing of mutual assets) was no longer needed. People could be free to choose to leave what was, to them, an unsatisfactory marriage.

It has been hypothesised that the violent attacks on the Family Court that followed this Act were a result of those unfairly benefitting from the previous status quo, feeling marginalised.

Fortunately property issues need not be considered in this latest proposal in the forthcoming plebiscite as all defacto relationships are now recognised by law in property adjustments.

This new, proposed act would be one of official recognition of a status that already exists. And how can that adversely effect those who already have legal status? It can only be because those who say they are against it because it would effect their own marriage will no longer be able to consider they have a “superior” edge. And this is a very small change to what we have done for only 200 years, that is only legally recognising one traditional British form of relationship.  We would be only recognising one other type, also monogamous before the law.

Arrangements which we should also have been recognising for these two centuries are within groups of our own indigenous people. It is illustrated by the role of whom we might call “aunties” in a family. This is very important. The concept of an isolated nuclear family was foreign to aboriginal people and in many cases has been imposed by our laws.

I was privileged to attend a world conference in 2001 on the rights of children. It is disappointing how late Australia is at looking at how sometimes the non legal recognition of “statuses” of parents can adversely effect children’s lives. In 2001 this was an issue already being discussed by European countries. Probably the speakers from Belgium proposed some of the most interesting changes to law to cope with conundrums that I had not, until that stage, properly considered.

Belgium judges described in 2001 that, whilst they did not want polygamy to be a form of marriage practised in Belgium, it should be recognised when it has occurred overseas in countries where it is legal, so that their immigration laws and laws surrounding refuges did not have the effect of separating mothers and children. That was very forward thinking – the rights of children should supersede conventional practices in legal recognition of the way people decided to construct their own families.

As a teenager, living in Cooma during the construction of the Snowy Mountains Scheme, I met many interesting people from a wide range of backgrounds and countries and, as a silent “fly on the wall”, sometimes heard some interesting adult viewpoints. One of my mother’s close friends was a University educated Mormon woman who was the wife of a very Senior Consultant loaned to the scheme by the USA Bureau of Reclamation. She made it clear that as a citizen of the USA, where polygamy was not permitted, she and her husband always obeyed the law of country. However she put forward a very strong defence of polygamy. She said negativity towards it is always rife in patriarchal countries as it actually limits the role of men. Polygamy is an asset to educated women as, in a family structure such as polygamy, there are more people to help in the child rearing role, particularly the person with younger children and it gives women more opportunity for careers and other such activities. She hypothesised it was good for children in that they also became used to a wider family group and thus exposure to more ideas.  Of course another result might be there are less men needed overall!

Over the years there have been many, many unconventional unions in the sight of the law, that I have seen work beautifully for adults and children. One such was a woman whose husband became a quadriplegic and suffered brain damage in an accident. She wanted to look after him and wanted her baby son to know his father. Later she met another man who shared her compassion. They had children and all lived together, he helped as a carer too and her official “husband” began to learn to talk again as the children did. It was an example for the whole community. But from time to time legal issues came to the fore as an inconvenience and distraction in a good working relationship.

I have known, as undoubtedly most people have known, some wonderful families where children have two dads or two mums. It is particularly heartening when they also have a relationship with their other biological parent as well. Three adults who love one is no burden for a child to carry. But they should not have to explain their situations each time. Their two Mums or two Dads should be able to marry, or not to marry, according to their choices, just as can the man and woman parents of their friends.

I worked for some years with children and the only time I heard any complaints about same sex parents was from teenagers was when parents flaunted their sexuality in a public way. But this was in no way limited to the children who had same sex parents!

Over history, over nations, over religions there have been multiple ways of organising families.

Personally, as a non theist, I think that the secular law in each country should not be influenced in any way by religious views other than to provide freedom for individual worship and freedom for individual’s choices in areas which do not impinge on others.

As far as relationships go, the law should be there to protect an individual’s rights in a dispute and children’s rights to receive care from their families. So it stands to reason, if the above two laws are in place, it should also be recognised by law that consenting adults’ choices of their family structure should be able to be cloaked in the authenticity of equal recognition by a societal ceremony before the law, if that is what they wish to have.


About Anne Powles

I am retired from paid employment. During my working life I have been variously and sometimes contemporaneously, wife, mother of four, lawyer, teacher and psychologist. I have also been a serial education junkie. As are we all, I have been an observer of the world around me. Here I have recorded some of my memories, observations and theorisings.
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