Ireland set the cat amongst the pigeons a little while ago by holding a referendum on gay rights, including marriage. The result shocked the conservative world no end. Catholic Ireland, not normally noted for its libertarian views, supported equality in life for the Gay-Lesbian-Bi-Transsexual community.

The pressure that grew from this hit Oz like a tidal wave. There was such a tizzy about it, calls for immediate change, referendum, all sorts were made. Comments ranged from “Ireland is a new den of iniquity”, to “Congratulations, Ireland”, to “About time too.” You’d think Ireland had just won the World Quidditch Cup, again, and your response was only dependent on which side you were on.

We have a very different system here, so we don’t need a referendum to change the constitution to allow marriage equality. What was offered by a floundering Liberal PM, Tony Abbott, was a plebiscite. This has served no useful purpose other than calming a lot of people, allowing them time to figure out ways in which the debate can be demonized. Since then, Mr Abbott has been deposed as PM and his replacement, Malcolm Turnbull has carried on with that same line. The fact is, Australia’s Parliament can change the laws about marriage, giving equality without any plebiscite. It only needs a conscience vote by Members and Senators, something the Conservatives have so far refused to allow. So much for individual rights and self expression of Liberal Party Members.

Constitutionally, marriage laws are the sole province of the Federal Parliament, not the States. This is part of the Federal/State divide considered by our founding fathers as being essential for a united Australia. As a British outpost, we had to keep our British customs, so there was never any question about it, just standardization of the rules. Times, however, change. Rules for one generation do not automatically apply for the next.

So far a lot of useless noise has been made about the issue and this will heat up in the future. There has been several Bills in Parliament that would have given equality without the need for a costly plebiscite, one of them destroyed by the same Party that promoted it. Ahh, politics, the great leveler, it treats everyone with equal contempt.

Politics also muddles and confuses issues easily, derails debates, allows the shouters and other individuals the opportunity to impose their views on the rest of the community. I could go on, but, I have to ask here, precisely what is this debate about?

The debate around marriage equality is a nonsense. Since there is now no discriminatory laws around homosexuality, as there should not be, then why is it that law needs to discriminate further? Who cares?

[I am sure a lot of people would say GLBTs should not be allowed public voice. Then what makes those people also say they believe in freedom and self-determination? Or is it freedom limited by rules they, and only they, make?]

All that aside, the above displays the pernicious nature of the marriage equality debate, I come back to the question of what is this debate really about? Is marriage equality a debatable subject or is this a debate we should really be having? Is there another debate that this debate is distracting from?

Okay, one at a time. What is this debate really about? As we accept gays as members of our community, then why are they denied full rights and obligations as members of our community. Or, if we are to accept gays as equal members of our community, why continue to discriminate? Are they only part time members? The whole idea is nonsense, either gays and lesbians are part of the community or they are not, they cannot be both. So this debate is really about community acceptance and officially recognizing all members of our community are truly equal.

For us, in Australia, marriage equality should not be debated, not necessary, I suggest. This is the land of the “fair go” we delude ourselves. Why then do we just not accept that all members of our community should be given that fair go. Equal opportunity is not gender biased.

The last question here is the most important question as I suggest that there is a much wider, and immensely more important debate we are avoiding here. It is not the components of marriage we should be debating, I would offer it is the structure of marriage we really need to redefine.

What is marriage? Why do we have it? Where did it come from, and so on are all important questions. Most of us actually don’t think about it much, if at all. Marriage is just something that we do, we have always done, and are likely to continue doing forever.

We have developed serious customs and protocols around marriage, ones that have remained constant for millenia. What has happened, though, social circumstances have changed dramatically in recent times. This leads to the question of whether the customs and protocols of our marriage practices are actually relevant anymore?

I don’t suggest we abandon marriage, but we really need to consider if marriage in its current format is doing what we need it to do? That is the big question we are avoiding.

At a Catholic ceremony about six or seven years ago, I heard the priest intone some thing along the lines of “What is joined in holy matrimony, in the presence of God, let no man split asunder.” I didn’t think about it at the time, but what does that actually mean.

Essentially I take it to mean that these two people are promising to be together always. This is the basic pillar of marriage. Unfortunately, the marriage did split, both people are lovely people, but they just couldn’t make it work. So, a few months ago, I went to his second marriage, to another lovely woman, and I really hope they can make it work. The trouble here is that he has promised to be with her forever too.

So it seems that promises made in marriage are as expendable as any political promise. Only kept as long as circumstances permit, or until after the election, or marriage ceremony. After that, does it matter anymore?

Well it does, and sometimes dramatically so. The wealthy have prenuptial agreements signed and sealed before weddings, a practice I thought absurd when I first heard of it. Given that most of the argument around divorce can be about property settlement, not as absurd as I first thought. The other part that causes even more drama is that of child care and custody.

When children are involved in divorces, they can get seriously messy. A man, Damian Little, recently drove his vehicle off the wharf at Port Lincoln in my home State, after shooting his two sons, 4-yo, and 9 months, killing himself and his children. Another man, Arthur Freeman, threw his 4-yo daughter, Darcy, off the Westgate Bridge in Melbourne, simply to deny his ex-wife custody, its seems. There has been no other explanation as to why he did this, his two sons were left alive in the car.

So much legal trauma surrounds custody battles, as well as so many resources. Courts, judges, and so many other entities are aimed at settling these disputes. Then there are escalating costs, onerous when most people require legal aid. All this brings huge stress and trauma to the parents, and children, and will often go on for years. No wonder some can’t handle it and go mental.

In this, should we work out a series of prenuptial agreements for the care of off-spring? Should we make marriage as difficult to achieve as a driver’s license? Should we not change the basic rules about what we define as a marriage?

These are the questions we should be asking, but we are not. We are being distracted by a debate there is no real need to even have.

Addendum:

In 2011, the High Court of Australia ruled that “Spousal Privilege” no longer exists. Essentially, this was a Common Law concept that excused a husband or wife from giving evidence against their spouse to protect the stability and harmony of the marriage. The High Court overturned this practice saying there is no such practice under Common Law. (There is other reasons, but too technical to do anything other than interest law students and send everyone else to sleep.) In terms of law, a spouse can refuse to testify, but face gaol time for contempt of court. A spouse can testify against a spouse and destroy any relationship they may have, but the ease of modern divorce laws means the marriage is doomed anyway. Post-divorce violence is increasing all the time in Australia, so what would expectations be? A spouse can perjure themselves, to keep faith with the other spouse, and face lengthy gaol time. Gaol or violence? Hobson’s choice.

An assumed privilege under Common Law never actually existed. So in what way does this decision help keep marriage as we practice it, alive and well?

More importantly, is it now plain that we need to change our marriage practices?

If marriage was a formal business contract, complete with end of life date and options to renew, like a property lease, would “spousal privilege” or its removal, have any impact upon the marriage? As well, could we quickly resolve many of the issues that wreck people’s lives when divorce occurs?