On the one hand, we have the figure of the female cohabitant left economically vulnerable at the end of a period of cohabitation. On the other hand, we have the demand from many gay rights campaigners for access to marriage or to a marriage-like status. The momentum which directs the trajectory of each interest group is distinctive and presents very different agendas.
The figure of the female cohabitant is one based on a rhetoric of economic vulnerability lacking adequate protection in law. It draws its strength both from the generally recognised economic disadvantages of women and from the presumption that marital property regimes can and should, to some extent, redress this disadvantage at the end of a relationship. Therefore this concern can be met by focusing on a regime which allows access to marital property law without requiring a recognition of the relationship for other purposes.
Conversely, the concern with same-sex recognition is not based on economic vulnerability as a fundamental campaigning issue, but rather on a right to equal treatment by the recognition of a committed same-sex relationship through marriage status or an equivalent. Indeed, in the arguments put for such a recognition, concerns about inheritance tax and being recognised as the next of kin
were regularly raised by campaigners — not access to the courts for property redistribution purposes.
These two trajectories meet at one obvious point: when the argument is put for recognising cohabitants in order to protect the economically vulnerable woman, any proposals for reform will now have to meet the criteria of equality and non-discrimination and therefore be extended to cover same-sex partners as well. Therefore a concern to address one figure, the economically vulnerable woman, becomes hidden or enveloped in a gender-neutral form and also a ‘sexuality-neutral’ form.
There is a second pattern in play which takes us back to the Civil Partnership Act — the demand for equality is the momentum for establishing rights for same-sex couples, and the presumption for most people is that this is based on recognising sexual relationships. However, the Civil Partnership Act does not presume or require sexual practices of any form. Any same-sex partners can register under the Act, as long as they are of the same sex. The reasons are probably to do with a distaste in making visible and examining same-sex sexual practices; but the consequences of this distaste are interesting. What is hidden, or enveloped, is sexuality — it will probably be the case for most partners that it is their sexual partnership which forms the core of their commitment and which is being registered, but in law it is merely their commitment to each other which is being registered (unlike marriage, which presumes and requires both sexual practices and sexual fidelity).
Finally, a third pattern becomes visible: a concern that a fallback position is required for those who do not marry or register their relationship. It ‘piggy-backs’ on marriage and registration, in that it looks to similar relationships to extend some form of protection to them, but the question is then whether such protection should be limited to property re-adjustment or should carry with it a broader gamut of rights and responsibilities equivalent to those held by people who have married or registered.
The development of these patterns is particularly visible in Australian jurisdictions. For the purposes of the paper, we focus on three: the Property (Relationships) Act 1984 of New South Wales, the Domestic Relationships Act 1994 of the Australian Capital Territory and the Relationships Act 2003 of Tasmania.
Most Australian states began with addressing opposite-sex cohabitants only — for example, the De Facto Relationships Act New South Wales (1984) and Tasmania (1999) — and then amending or introducing statutes to extend protection to same-sex relationships[162] by redefining de facto couples. Most sub-national statutes have also retained a ‘cohabitation requirement’.[163] For instance, s 4(1) of the Property (Relationships) Act 1984 redefines a de facto relationship as one ‘between two adult persons: (a) who live together as a couple, and (b) who are not married to one another or related by family’.[164]
References to de facto partners ‘living together as man and wife’ are increasingly rare in the Australian legislation. The move from opposite sex to same sex, although clearly based on the image of a sexual partnership, becomes ‘de-sexed’ in an overt way by moving towards definitions based on what has become known as ‘coupledom’.[165] If we are right in thinking that this is primarily due to an unwillingness to become caught in definitions of sexual practices (which lay at the root of marriage) when moving beyond opposite-sex sexual practices, then we have here an interesting doubling-back effect. A move from marriage into heterosexual practices remains defined by recognised sexual acts. Once, however, same-sex relationships are included, not only does the lack of sexual explicitness allow the heterosexual world not to have to think about what lesbians or gay men do in bed, but it also leads to a displacement of the centrality of sex for heterosexuals too, at least in the general structure of the legislation.[166]
For some advocates of gay rights focused on same-sex inclusion, the displacement of sexual practices is one which still fails fully to signal the fullness of their sexual partnership — an argument which is in full flow in both Canada and the United States, but seems, to date, more muted in Australia.[167] This may connect with the second trend, which is that the Australian developments have been based almost entirely on ‘presumptive’ rather than ‘registration’ regimes (the only exception being recent reforms in Tasmania). Therefore, the move from opposite sex to same sex has been more incremental, more subdued and more, we would argue, entwined with the original concerns with protecting the economically vulnerable rather than, ab initio, being focused on a claim to a right to marriage status or equivalent.
This decentring of sexual practices opens up a space for recognising ‘relationships’ which might not actually include a sexual element at all and allowing for other patterns of domestic interdependency which are not ‘couple’ based.[168] Parliamentary debates on the Civil Partnership Bill, and developments in Australian and Canadian jurisdictions, explored and extend this possibility. But, before we move on to examine this extension, we need to return to the boundary between marriage and other domestic statuses. At this point the question is: should any benefit be retained as exclusive to marriage?
What is interesting in Australia is that earlier distinctions made between married couples and de facto relationships for the purposes of property adjustment orders have begun to erode, with some legislation like the Relationship Act and the Family Court Act 1997 of Western Australia demonstrating greater convergence between orthodox family law and de facto provisions. The Family Court Act is the most extreme example of wholesale transplantation of the marital provisions contained in the Family Law Act 1975 (Commonwealth) into legislation dealing with de facto relationships. As a result, the provisions applicable to married spouses on divorce are now equally applicable to opposite — and same-sex cohabitants in Western Australia.[169]
However, this convergence in terms of property redistribution retains the distinction of marriage (as an opt-in regime) and the broader rights and responsibilities carried within that status, leaving same-sex couples on a par with unmarried opposite-sex couples as in a type of informal arrangement, recognition of which would address possible economic vulnerability and allow for the question of equality to be played out rather than addressing status issues directly.
This suggests to us that the line drawn around marriage is permeable, both in the sense that it may be stretched to cover others for certain purposes, but also in the sense that it may be possible to ‘let go’ of certain characteristics which were once held as exclusive to those who had marriage status and therefore in part defined that status, whilst still maintaining (the possibility of) a site of ‘marriage’ as the ‘real thing’ as distinctive from the simulacra of marriage — types.