An Opinion Article
By Melanie Nathan, December 26, 2013.
While we tend to tout equality only in the light of love, there is another glaring truth that we barely speak of; same-gender couples need marriage so they can get divorced. That is when, as a civil law institution, having marriage is imperative. Of course we need certain laws, such as tax laws, hospital visits, pensions etc., during marriage and hence we can make the argument why coupling without the choice to marry is unfair. However we hardly ever make the argument that we need marriage so we can get divorced; we need it to define how we break up. Most people when advocating for our marriage rights, lose sight of this critical argument as to why it is so important to have parity under the law.
For years our gay and lesbian community has suffered the impact of not having the same rights as heterosexuals, who can choose to marry, regardless of what State they live in. For years we have heard the religious right brow beat us into thinking that marriage is all about a Biblical interpretation of what God wants for all humans. Let us not forget what marriage really is. The definition of marriage varies according to different cultures, but it is principally a social union in which interpersonal relationships, usually intimate and sexual, are acknowledged. However as important is the fact that marriage is a binding legal contract between two people, that establishes uniform rights and obligations between two spouses, and between the spouses in relation to their children.
So while same-gender couples are denied the benefit of civil marriage laws in many places, the greatest difficulty of not being married, is experienced when one needs a divorce, when it comes to the break up. Same-sex couples are thus denied the advantage of clarity under the law, where their rights and obligations enjoy clear definition, causing uncertainty and prejudice at the time of termination. So one of the most important reasons for getting married is so that we can have clarity and fairness when it comes time to divorce.Why
I have been privy to the enormous impact of the lack of law to govern broken gay and lesbian relationships, where for example couples have been together treating their relationship as if married, for many years. More often than not these couples experience serious imbalance in the financial and parenting aspects of the relationships. Especially where one partner has stayed at home as a homemaker, while the other has an enhanced career. Some relationships carry on for years, as if marital, yet without applicable laws, and unless one enters into written partnership agreements, early on, proving the intention of the financial understanding in the relationship, can be very difficult at the time of termination.
How to help couples who do not have marriage laws to define their breakup:
These types of breakups are best served by mediation, using an experienced neutral third party, who has an understanding of the issues of same-sex couples, deprived of legal clarity, through lack of equal laws. Obviously married couples are also well served by mediation, in most cases.
It is the mediator who can ensure one or more of the (non-exhaustive) following, depending on the individual case:-
1. Helping parties understand the law that ought to have applied to a relationship, but did not;
2. Helping parties define and reach agreement as to their intentions toward each other during the relationship;
3. Helping parties honor their commitments to each other, regardless of lack of law;
4. Creating an environment of understanding where each party validates the position of the other, thereby dispelling the assumptions that cause conflict;
5. Helping parents place the best interests of the children at the fore:
6. Ensuring smooth transitions by creating plans that include financial support and interim custody/parenting plans, pending final settlement;
7. Ensuring the parties are equally empowered through external resources;
8. Keeping the process productive and preventing unnecessary legal expenses, through early management of conflict and the avoidance of litigation;
9. Allowing the partners to control the outcome by reaching a fair agreement that creates a win/win scenario rather than a win/lose scenario.