WHEN Australian same-sex couples were finally granted equal access to the Marriage Act in December 2017, the widespread expression of relief was tempered by a growing awareness of a legal minefield.
“Here we were on the other side of the world not being able to have clarified which of our relationships was valid.”
Brisbane couple Elaine Crump and Sharon Dane let the emotions in, but the status of their long-term relationship remained in limbo. Like many same-sex couples seeking legal documentation during the interminable wait for Australia to pass marriage equality, Elaine and Sharon had already taken their chances in countries where equality was accessible.
The pair first solemnised their relationship with a civil partnership at the British Consulate in Brisbane during 2006 — in fact they were the first lesbian couple to do so in this country — but neither could have predicted that was merely the start of an arduous legal journey.
“It gave us some credibility among our family and peers,” Elaine, a tradesperson, remembers.
“We were no longer just a couple living together but had some form of formal recognition, albeit in another country; and both our families are British.
“There was a level of excitement about it, as it was something we were finally sharing together that others were able to take for granted.”
Sharon, a psychology researcher, agrees: “There was no other way back then of us formalising our relationship”.
“The only thing we had to show we were a couple prior to that was a ‘stamp duty free’ declaration form from the Department of Transport.
“As we were British citizens, we felt that at least we were being legally recognised in a country that was part of our identity,” she adds.
According to Sharon, just before the couple were civilly-partnered, staff at the consulate required them to officially acknowledge that they understood the ceremony was not a marriage.
“That was hard to swallow,” she says.
“We were well aware of that, but to have it emphasised on our special day was upsetting.”
The ‘Best Wedding’
The ceremony attracted significant media attention during the Beaconsfield Mine collapse in Tasmania. Elaine and Sharon recall the sudden scrutiny brought on by the media’s need for alternate content during the lengthy wait before the trapped miners were brought to the surface.
“We allowed the media into that occasion and there was a sense of politics about it which somewhat detracted from the very personal nature of what we were doing,” Elaine says.
“For this reason, I drew the line in not allowing the media at our reception.”
Sharon believes the spotlight came as a result of being one of the first same-sex couples to enter into a UK civil partnership in Australia.
“Interestingly, we weren’t allowed many people to attend the ceremony at the consulate, only immediate family and our witnesses,” she says.
“So there wasn’t that sense of celebration you would normally experience at a wedding.
“Instead, the media filled the room taking photographs.
“While this took away from some of the personal nature of it, it also gave it some sense of celebration, with it being acknowledged as something historic and special.”
According to Elaine, the bulk of the ceremony was at home with close friends and family: “I do remember my mum saying it was the best wedding she had ever been to.”
By 2008, overseas civil partnerships between same-sex couples were still not recognised in Queensland. That process would not begin until 2011 or be settled into law until 2016.
Elaine and Sharon’s relationship recognition had therefore reached an impasse, but they saw an opportunity in another country.
“Part of it was opportunism, as Sharon had to go to Rhode Island for a conference and I decided to go with her for a holiday,” Elaine recalls.
“We decided we would use the opportunity to drive up to Canada to marry, as it was another step in our journey.
“Marriage felt far more normalising. It would allow us to say we are married couple now, not civilly-partnered.
“We could come home and say that at least somewhere in the world we are a married couple.”
Sharon remembers her critical concern was about she or Elaine dying before they had the opportunity to marry or have a civil partnership recognised at home.
“If that happened, you couldn’t turn back the clock,” she says.
“There would be no way of the surviving partner showing we were ever married.
“I felt it was like putting it in a time capsule, ready to pull out once the laws had changed.
“It was also because people got it when you said you were married, they didn’t get it when you said you were civilly-partnered.”
By the time of Elaine and Sharon’s 2008 marriage in Toronto, Canada, the couple had become involved in marriage equality activism, although both remember how entering into their second relationship certification was not in any way political.
“We were doing it for us,” Sharon says.
“However, letting the media tell our story was politically motivated, as we wanted to get the message out there that we were a normal couple that just wanted to be treated like everyone else.”
Elaine agrees: “From a political perspective it was great that our ceremonies helped highlight the issues in the press.”
Sharon’s role as a psychology researcher working on the relationships and wellbeing of LGBTIQ Australians was extended into her activism, which strengthened her views on why having the choice to marry was so important.
“As the research strongly indicated, it was simply about being respected and included in society,” she says.
“The desire to marry was a personal one, but to have the choice was critical in terms of feeling treated as an equal.”
Elaine and Sharon met through the Brisbane entity of the social group Older Wiser Lesbians (OWLS).
“I was away in Darwin on a work trip and when I came back Sharon was a new member and we became friends,” Elaine says.
“Eventually, and when I was no longer in a relationship, we found a mutual attraction to each other.”
Sharon recalls the pivotal weekend the relationship began: “A group of us women went camping at a lake. Elaine had a small sailing boat which you could sleep in. Everyone was deciding what tent they were going to sleep in and Elaine said ‘I’ve got a spare bunk in my boat’.
“Well I quickly put my hand up for that offer, and just as well, as it was in that boat where we expressed a mutual attraction,” she adds.
“That was almost 17 years ago. We no longer have that boat but a picture of her hangs proudly in our house as a reminder.”
After their 2008 Canadian marriage, Sharon and Elaine continued to campaign for marriage equality in Australia, including staunch opposition to the Turnbull Government’s planned plebiscite on the human rights issue throughout 2016.
According to Sharon, their interest in laws regarding civil unions and same-sex marriages across the world made the couple aware that it wouldn’t be possible to have two formal relationships — even if to each other — recognised in the same country.
“As the UK later changed its laws in 2014 to recognise overseas same-sex marriages, we started to wonder which of our two relationships — the civil partnership or the Canadian marriage — it would recognise,” she recalls.
“To complicate matters further, Canada changed its laws in 2014 to recognise an overseas civil partnership as equivalent to a marriage, with a Canadian lawyer advising us that our civil partnership would be viewed as the true marriage because it happened in 2006, two years prior to our 2008 Canadian marriage.”
The couple quickly realised they were in the same position as countless other same-sex partners in Australia: in need of legal and/or consular advice about the status of their relationships.
“We first contacted the Foreign and Commonwealth Office of the UK government,” Sharon says.
“They told us that it was complicated because we didn’t live in England and therefore they weren’t sure which of our relationships was valid.
“This meant we were not allowed to have our civil partnership converted to a marriage in case the Canadian marriage had rendered the civil partnership void in the UK.”
The couple corresponded with the United Kingdom Government for over three years while remaining in what they describe as “legal limbo”.
“Finally, they agreed that if we could seek the expert opinion of specialists in English family law, they would consider our case,” Sharon recalls.
“This was a costly exercise that we feel we should not have had to go through.
“We felt we had no choice but to pay for the services of a London lawyer specialising in same-sex marriage law.”
Sharon did an internet search for “Family Law, England, LGBT”.
“Luckily we found A City Law Firm, a wonderfully supportive and knowledgeable legal firm in London,” she remembers.
“They, with counsel on the matter from a barrister, made it clear to the UK government that it was our Canadian marriage that was void under English law, not our civil partnership.”
“The reality set in: Were we really legally married?”
In late 2017, the Turnbull Government conducted a compulsory postal survey to gauge public sentiment on allowing same-sex couples equal access to the Marriage Act.
Sharon was present in the House of Representatives at Parliament House, Canberra, when marriage equality was voted on and passed on December 7 that year.
“I remember calling Elaine right after and us crying over the phone, and that we were ecstatic this had happened,” she says.
“I think the passing of the law at that time was when I experienced the huge emotional outpouring.
“But then within a week of that, the reality set in: Were we really legally married?
“That put a real damper on things.”
According to Sharon, words can’t adequately describe the frustration and powerlessness that she and Elaine went through while they waited on a response from the UK Foreign and Commonwealth Office.
“Here we were on the other side of the world not being able to have clarified which of our relationships was valid,” she says.
“This meant we couldn’t confirm if we were already married, nor could we get married in Australia in case the Canadian marriage was deemed valid.
“I couldn’t help but feel bitter, as if we had the right to marry in Australia in the first place we would not have had to have gone through this unnecessary stress and expense, which was of no fault of ours but as a consequence of same-sex marriage laws changing around the world.”
When the news finally came through from the UK government in February, 2018, that the couple could convert their civil partnership to a marriage, Sharon and Elaine recall being overwhelmed with joy and relief, particularly because the certification was back-dated to take into account the total number of years of their marriage.
“This was the relationship we entered into first, 12 years ago, and the one that involved all our friends and family in Australia,” Sharon says.
“It was the one with a wedding album, flowers, a cake and our loved ones.”
Sense of Peace
This year, Elaine and Sharon returned to the British Consulate in Brisbane to have their 2006 civil partnership converted to a marriage that was automatically recognised in Australia.
The certification was likely to have recorded theirs as the first lesbian marriage in this country.
For Elaine, the overriding feeling was relief: “It’s been such a battle for so long,” she says.
“We finally know it’s legally binding and recognised in the place we call home.
“When we go out now and introduce each other as ‘this is my wife’, I don’t get that feeling that people think ‘oh yeah that’s nice, but they are not really married’.
“After all these years of exclusion, I’m able to say ‘yes I’m part of this, I am legally married, you are my wife’.”
Sharon recalls the conversion as an experience of happiness on two fronts, the “huge relief” of ending a drawn out legal battle, and that having the marriage recognised in Australia gave the couple “closure and a sense of peace”.
“All the boxes are now ticked,” she says.
“There is no more fighting on an Australia level, no more fighting on a British level, or any other level.
“We are now like any other couple who can say ‘okay we are married’ and that’s the end of it.”
© Michael Burge, all rights reserved.
Photos/Video: Alison Pike and Stephen Pike.