this might be because I’m a family law lawyer and also an old crone who remembers when marriage equality wasn’t a thing (as in, marriage equality only became nation-wide two months before I went to law school), but I have Strong Feelings about the right to marry and all the legal benefits that come with it
like I’m all for living in sin until someone says they don’t want to get married because it’s ~too permanent~ and in the same breath start talking about having kids or buying a house with their significant other. then I turn into a 90-year-old passive-aggressive church grandma who keeps pointedly asking when the wedding is. “yes, a divorce is very sad and stressful, but so is BEING HOMELESS BECAUSE YOU’RE NOT ENTITLED TO EQUITABLE DISTRIBUTION OF MARITAL PROPERTY, CAROLINE!”
“oh, he thinks a piece of paper shouldn’t define your relationship? ASK HIM HOW HE FEELS ABOUT BEING ON YOUR BABY’S BIRTH CERTIFICATE, PATRICIA.”
“oh, sure, it’s all fun and games until your estranged parents are making medical decisions for you and inheriting all your property, TIMOTHY.”
so, I’ve gotten this question and similar ones before, and I want to use it to go into what marriage actually is.
so, in law, there are a couple of legal assumptions made when someone is a close family member, like a parent. the assumptions are that this person knows you well enough to make decisions on your behalf in an emergency, supports or is supported by you financially, and, most importantly, that they are emotionally significant to you in a way that makes them different from a total stranger or a good friend. immigration law, for example, prioritizes families over people immigrating for jobs alone, because not getting a job doesn’t have the same emotional weight as never seeing your mom again.
the difference is that you don’t get to choose your family (outside of adoption and, uh, legally that’s not a bilateral decision). you do get to choose your spouse. the fact that you chose them is why they get priority for things like inheritance and immigration, even over your parents or your siblings or your grandma.
how does the government know that this particular person is someone you want to have as part of your family? you fill out a form and you tell them.
what happens if you don’t want them in your family anymore, and don’t want those assumptions made about them? you fill out a different form and you tell the government that.
the thing I think that’s hard for people to wrap their heads around – whether you’re a starry-eyed romantic or a pragmatic bitch like me – is that marriage isn’t an announcement of how much you love someone. that’s what a facebook status update is for. you do not need to be in love, or sexually/romantically monogamous, or be religious, or any of the other things people associate with marriage, in order to be married.
it’s a legal decision. it is choosing to get certain benefits (like taxes, because it’s assumed you’re financially supporting each other) in exchange for certain responsibilities (because it’s assumed you’re supporting each other, it stops mattering exactly who bought what after you got married, so divorce splits the whole pool of stuff even if one person bought like 75% of it).
you don’t get the one without the other, and you don’t get either if you don’t affirmatively say that’s what you want to have happen. it doesn’t happen automatically, or in every romantic relationship no matter how serious, because the choice is the point.
and, to be clear: if you do not want, or do not care about, the legal rights and responsibilities of being married, you should not get married. it’s a fucking legal contract that has serious legal implications! it’s not something you should be doing for funsies!
tl;dr: if you want all the shit that comes with a marriage, good and bad, you need to tell the government that’s what you want. if you don’t want it, then you don’t need to do it, but you need to also be aware of what you’re potentially losing (in exchange for what you’re keeping). that should be an informed decision, not one you make for emotional reasons like “I just want everyone to know I’m only having sex with this person forever” or “our love is so pure it transcends legal boundaries.”
Is there any option other than marriage for telling the government you want this person to be part of your family? Like, can you draw up some kind of homebrew contract?
Short answer: No. If there was, queer people would have done it already.
Long answer: That’s a little like asking “can you become a citizen via contract rather than going through the immigration and naturalization process?” Marriage is a legal status: you either are or you aren’t. Can you cobble together very specific stuff, like advanced healthcare directives and wills and whatnot? Yes, absolutely. But anything that requires you to be legally married as a status cannot be contracted away: you can’t file taxes jointly or sponsor someone for a green card or get someone’s Social Security benefits if they die if you’re not married to that person.
Now, to be clear: some things that often require marriage do not always require marriage. For example, usually you need to be married to have someone unrelated to you be on your health insurance, but my job’s specific health insurance plan allows coverage for domestic partners, which they define as a single person who has cohabitated with you for six months or more and is in a committed relationship with you. So even though my fiancé and I are not married yet, he’s been on my health insurance for the past year and a half, because we hit the six month mark of living together right around when I had to re-enroll in my health insurance for the year.
But if we’d gotten married sooner, he’d have been able to get on my health insurance right away (getting married is a qualifying event that lets someone get on a health insurance plan outside of the enrollment period), but since he’s just a cohabitating partner, we had to wait six months for him to get on my insurance. And if he’d moved in with me a month later, we’d have to wait a whole year before he could enroll with me on my health insurance. Even though it’s allowed, it still doesn’t have the same standing as a marriage.
I guess technically adult adoption is an option, in that it is what queer people did for a while in lieu of marriage, but it’s a bad idea for a lot of reasons (not least of which being that you can divorce a spouse but you can’t undo an adoption).
this, THIS is why QPR make me so fucking nervous. i’m not trying to shit on your beautiful poly aroace love affair, i’m asking you HOW WILL THIS RELATIONSHIP HOLD UP IN COURT. cause, news flash: it won’t.
if you have shared bank accounts and a house and a kid with someone who isn’t married to you, they can wipe you out – legally speaking – and you have no recourse. none. you will never see your kid again, unless you’re lucky and contributed half their DNA.
if they have a car accident and end up in hospital, you don’t have a legal right to see them. if they’re in a coma, their parents can pull the plug and adopt that child and you can do nothing.
queers wanted marriage equality not to Be Like Teh Hets, but because it is the most legal protection you can ever have against that bad stuff that comes (and it comes for everyone).
if you don’t have that stuff, if you’re relying on your partners to do the right thing forever and be perfect people and never have a business collapse or a messy family situation or an accident or even to get sick … you’re being really, really naïve.
Pre-legal-gay-marriage, I saw this happen. I was on a parenting board and one day a woman we’d posted with for years told us her partner and one of their children had died in a car accident. And because she wasn’t the biological parent of the surviving child – the child she’d been a parent to since conception – her ex’s parents took custody and took the child away and kept her from seeing that child. Ever.
Because here’s the thing: children are not property. Specifically, in estate law, children are not, and cannot be “Real Property.” You cannot bequeath them like furniture, books, and bank accounts.
“But my will states who I want as guardian!” You say. Welp. That statement is, in law, only a (strong) suggestion. A judge still still have to rule on guardianship of your minor child, and you cannot, from the grave, dictate where they end up.
Again: Children are not real property. If you are not their biological or legal parent, the state can remove them from your custody and hand them to someone more closely related, or not related at all but merely less gay, less queer, less “inappropriate” by your state’s legal standards.
The woman I knew back then was on good term with her not-quite-in-laws. Or thought she was. Because as soon as her partner died, their tune changed 100%, they found anti-gay legal support, and they took that woman’s child from her. Forever.
That’s not my only “my outlaws are great and fine with us and its okay we’re not legally married” story, but it’s probably the most heartbreaking. Though the image of a man who has just lost his partner of 25 years watching his ex-outlaws take ½ of his chairs, ½ of his pillows, ½ of his sheets, ½ of his napkins, ½ of his towels, ½ of his dishes, ½ of his books….. is pretty fucking close. After they made him sit behind “the family” at his partner’s funeral.
My mother was a lifelong Republican, a very conservative Catholic. The thing that pushed her over on legalizing gay marriage was stories about people being in the hospital and their partner of 20 years not being allowed to see them, because they weren’t legally married. She thought that was wrong and unfair.
Also a reminder “get married” does not mean “have a wedding.” You can file the paperwork and get married in a courthouse or office. There doesn’t even need to be a ceremony, you just have to sign some papers. (Bonus: you get access to the legal privileges of marriage as well as the protections, AND you get to stick it to the billion dollar “wedding industry” that preys on us all.)
#this is also why marriage equality for disabled people is super important
