The Equality Myth: Saying “Same-Sex Couples Have Equal Rights” is Lying

November 10, 2015

blog graphic featuring two men standing holding hands

‘I lost my soulmate and was then left feeling worthless.’

These are the words of Ben Jago; a Hobart man, who, after losing his partner of five years, was subjected to the trauma of having their relationship wiped out of existence by state authorities.

Ben Jago’s partner, 25-year-old Nathan Lunson, ended his own life after struggling with mental illness. Over the past several years they had worked to create a life together: they built a house, they doted upon their dogs, and they shared their finances and lodged joint tax returns. They were unarguably a couple, both at heart and under the eyes of the law.

Yet, the sequence of events following Lunson’s death left Ben deprived of his legal rights as Nathan’s partner.


Australian Marriage Equality logo

Ben’s story: “events cascaded out of my control”

When Ben Jago found his partner’s body he contacted emergency services. When the police arrived, Tracey Spicer reports for Fairfax, they were initially ‘compassionate.’

Then, however, something changed.

‘Several hours after his death I was interviewed by the police who told me his mother would be recognised as next-of-kin instead of me, and that she would be given custody of his body,’ wrote Ben in his story for the Tasmanian paper, The Examiner.

‘I contacted the Coroner’s Office and was told I could only be considered next-of-kin if I went to the office of Births, Deaths and Marriages and registered our relationship. When I contacted that office I was told both parties had to agree to registering the union which was now impossible.’


blog graphic featuring a portrait of marriage equality advocate Ben Jago

Ben Jago was denied the right to help prepare his partner’s funeral.

In his interview with Spicer, Ben said that police began to refer to him as Nathan’s “housemate” and not his “partner.” With this linguistic switch, authorities proceeded to discriminate against Ben––their failure to recognise the two men’s relationship status was completely outside of the law.

Ben was denied access to see the body of his partner. By the time he had sought legal help, Nathan’s body had been released to his family.

Ben says the family failed to contact him about the details of the funeral.

Instead, he was forced to find out about the funeral service through ‘word of mouth’ and was only permitted to attend after Nathan’s family agreed that Ben could be there, but only if he ‘sat down the back and said nothing.’

‘The ceremony did not reflect his life and made no mention of our relationship,’ wrote Ben.

blog graphic with quote from Australian Marriage Equality national director Rodney Croome

A disregard for the law and the myth of equal rights

Australian Marriage Equality national director, Rodney Croome, congratulated Mr Jago for speaking out and urged MPs who are undecided about marriage equality to read his story.

“Every day I hear politicians dismiss the need for marriage equality because they believe the recognition of same-sex partners as de facto partners is enough,” Mr Coome said.

“As Ben’s story shows it is still too easy for officials to treat us as if we have no spousal rights at all and marriage equality will make a difference to this.”

“We will write to all federal MPs and Senators familiarising them with Ben’s case and how it illustrates the need for marriage equality.”

As one of the leading advocates for recognition of same-sex couples in his home state of Tasmania twelve years ago, Mr Croome said Mr Jago’s story left him disappointed and angry.

“I still find it hard to believe Tasmanian officials could so blatantly disregard a law we fought so hard for,” Mr Croome said.

“I felt like I had failed until I realised the failure lay with the Federal Government for perpetuating discrimination in the ultimate relationship law, the Marriage Act.”

“As long as the Marriage Act says same-sex relationships don’t matter, the existing legal rights of same-sex couples will be easier to disregard.”


Same-Sex Spouses and the Law: protecting your relationship rights

Despite the federal government’s failure to legalise same-sex marriage, Australia’s same-sex spouses do receive otherwise equal status as married or de facto different-sex couples when it comes to the law.

Under the Same-Sex Relationships Bill 2008, the word “spouse” includes:

  • A same-sex partner that one is in a relationship with that is registered under a certain state or territory law
  • A same-sex partner whom, although not legally married, lives in a genuine domestic basis in a relationship (a de-facto couple).
  • Since 2014, same-sex couples that have married overseas can register their marriage with the NSW Registry of Births, Deaths and Marriages.

I want to read more about the NSW Same-Sex and Gender-Diverse Relationship Bill

I want to read more about de facto relationships


The Need to Legalise Same-Sex Marriage to Foster Acceptance and Equality

However, despite legislative changes, it is clear that the failure of the law to allow same-sex couples to marry sends out a clear message that it is okay to discriminate on the grounds of sexual orientation––as was the case in the way officials have allegedly treated Ben Jago.

As a family law firm in the centre of Sydney’s diverse Marrickville community, we believe that everyone should have the right to choose whom they marry.

We also believe that couples should have the right to not marry; and, yet, to still be recognised as being in a spousal relationship, and thus be afforded all the same rights as their married peers (de facto).

graphic showing the latest statistics for the Australian population support for same-sex marriage

The legalisation of same-sex marriage ensures those couples that want to marry can do so; and, will also engender the further protection and acceptance of same-sex couples that want to remain or enter into de facto relationships by promoting acceptance and equality.

In her Fairfax article, Spicer throws the following hypothetical into the ring:

‘Tasmanian Police Commissioner Darren Hine says, “while determining next of kin can be legally complex, sexuality is not a consideration”. But can you picture authorities assuming the deceased’s mother was next of kin, if Ben were a woman instead of a man? I can’t. ‘

It’s something for us all to consider.

Despite same-sex de-facto couples having all the legal rights as different-sex de facto couples, it is hard for us to imagine a partner in a different-sex de facto couple having to prove their spousal status at the site of a tragedy within the couple’s own home.

The federal government’s decision to continually push aside marriage equality continues to promote ignorance and discrimination in this country. As long as the Marriage Act says that same-sex relationships aren’t important, the legal rights of same-sex couples will be disregarded and people will remain woefully ignorant.

Don’t be afraid to ask for support. If you are struggling with depression or anxiety, call the following numbers to speak to someone who can help.


Lifeline 131 114

MensLine 1300 789 978

Beyondblue 1300 224 636

QLife 1800 184 527

QLife is Australia’s first nationally oriented counselling and referral service for Lesbian, Gay, Bisexual, Transgender and Intersex (LGBTI) people.


CM Lawyers stand in solidarity with same-sex couples in our heartland of Sydney’s inner west and across Australia in support of marriage equality. We are local business supporters of Australian Marriage Equality and contacted Mr Croome for his comments, featured in this article, on Ben Jago’s story. If you are unsure about your spousal rights as a same-sex couple, please don’t hesitate to email or fill in a form to start a conversation with a family law solicitor.


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