It’s an urban myth that same-sex couples and married heterosexuals have equal legal rights

Tracey Spicer for The Sydney Morning Herald, 8 November 2015

Ben Jago's partner Nathan Lunson died before the couple had a chance to marry in New Zealand, now the 29-year-old is struggling for recognition of their relationship.

When Ben Jago's partner died, he was traumatised to discover he wasn't allowed to be his next of kin.

Next year, you were going to New Zealand to get married.

Suddenly, the police arrive. At first, they are compassionate. Then, something changes.

Instead of "partner" you are "housemate". A plea to see your beloved's body is denied. They say you are NOT next of kin.

This is what happened to 29-year-old Ben Jago after his partner, 24-year-old Nathan Lunson, killed himself in the kitchen of their Hobart home.

"I was distraught, disoriented, and overwhelmed," he remembers.

Ben, hunched in a chair near where he found Nathan's body in January, is still in shock.

"I wish I didn't have to tell my story, because it's difficult for me, but I would like to stop this from happening to anybody else," he says.

Ben is a lovely young man – shy and softly spoken – who works in disability services.

His mum Keren, a community nurse, sits next to him, stroking his arm.

"I haven't really been able to grieve," he says. "To be treated like I meant nothing to him, left me feeling like part of my soul had been crushed to dust.”

There's a misconception that same-sex couples and married heterosexuals have equal legal rights. It's an urban myth.

"Every day I hear politicians dismiss the need for marriage equality," National Director of Australian Marriage Equality, Rodney Croome , says. "As Ben's story shows, it is still too easy for officials to treat us as if we have no spousal rights at all.”

This came as an awful shock to Ben who – the following day, dazed and confused – called the coroner's office for clarification.

"They told me I could register my relationship with Nathan. So, I called the Registry of Births Deaths and Marriages. And they said I couldn't because he was deceased," Ben says.

Even if they'd been in a registered relationship, it wouldn't have been enough.

"It's clear from what the police and coroner's office said that they don't understand what a registered relationship is, or how it works," Croome says. "Compared with this, marriage and the rights attached to it are universally understood.”

By the time Ben found a lawyer, Nathan's body had been released to his estranged family.

His mother was named next of kin. She planned a burial in their regional hometown. He had wanted to be cremated in Hobart.

Ben and his family sat in the back row of the church as eulogies were read, without a word about their relationship.

"It was one of the saddest funerals I have ever been to because, for Nathan, a very big chunk of his life wasn't talked about," Ben's mum, Keren, says. "It would have been very different if they were married, because Ben would have had a legal right to have a say in what happened."

This is at the heart of the same-sex marriage debate. 

Equality under the law would send the message that all relationships should be treated fairly.

Photo:  24-year-old Nathan Lunson 

According to the latest Fairfax-Ipsos poll, 71 per cent of Australians think same-sex couples should be able to marry. Prime Minister Malcolm Turnbull has repeatedly stated his support for marriage equality.

Why subject the LGBTIQ community to a drawn-out campaign, leading to a plebiscite? Delaying the inevitable only leads to suffering, because of misunderstandings of the law.

"If we'd been able to get married under Australian law, none of this would have happened," Ben says.

His case is going to the Anti-Discrimination Tribunal next year.

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. 

"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," Croome says.

Sure, a marriage certificate is just a piece of paper. But it's a very important piece of paper.

As Ben says, cradling a photo of Nathan cuddling their dogs: "It's a piece of paper that would have stopped this happening to me”.