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"The present law and procedure actively prejudices people living in same-sex relationships and defacto couples upon their separation. Reform is necessary if a significant proportion of our community is to be equal at law to married couples or at least to have humane amendments to the law and procedure applicable to them upon their separation." (Submission of the Maintenance and Property Committee, Family Law Section of the Law Institute of Victoria on Division of Property upon Separation of Same Sex Couples.) Acknowledgment Most material other than "What to do?" and portion of "Other Issues" has been drawn from the Submission of the Maintenance and Property Committee Family Law Section of the Law Institute of Victoria on "Division of Property upon the Separation of Same Sex Couples" dated 26 November 1996.

GayLawNet^® Divorce, Separation
on 06 May 2008 at 2230K (GMT+10)

What to do?

1. Talk to your partner

   If it is early days, you may be able to better understand each other's needs and aspirations and even rescue a partnership that is under strain. Consider whether you might both benefit from talking things over with a person skilled in personal relationships.

   It has to be acknowledged that a separation causes considerable stress to both partners and often hurt is harboured to such a degree that attempting to resolve property matters and financial affairs becomes a battleground that may otherwise have been avoided by some careful planning and cool-headedness.

   Be aware of your emotional state and the effect on your partner. It is the view of this writer that whilst your relationship may be at an end, friendships are to be highly valued and if your separation can be such as to preserve that friendship there is much to be gained for both of you and your future relationships will be the richer for the effort.

2. Reach for the agreement

   If the partnership is definately at an end, and you already have a formal agreement in place to regulate matters between you, check the provisions to determine what must be done to comply with that agreement and be mindful of any time limitations.

   If at the commencement of your relationship you and your partner did not put in place a property agreement, one or the other of you may be significantly disadvantaged in separating your property and in resolving your financial affairs. It is therefore recommended that every effort be made by you both, to negotiate an agreement that you can both accept as reasonable, after considering all the circumstances over the period of your relationship.

   If you are successful in negotiating such an agreement, you are advised to reduce this to writing and have an attorney produce a formal settlement agreement, which should include a timetable within which particular matters and issues are to be attended to.

3. Make a List

   Whether or not you reach an agreement, it is important to make a list of property that you say is jointly owned by both of you and also any property that you say is owned individually by you or your partner exclusively. Be aware that your partner may take a different view.

   If this list can be mutually agreed, it should also form part of the formal settlement agreement referred to above.

   If there is any real estate registered in the name of your partner only and to which you have contributed financially or otherwise, as a precautionary measure you should immediately arrange to have a caveat registered on the title to the property to protect your interest.

4. If communications have totally broken down

   You must seek professional advice from an attorney experienced in such matters.

   It will be of immense benefit to your lawyer if you prepare complete details of your property and financial affairs prior to meeting with your chosen attorney. Full names, addresses, dates of acquisition or disposal of property, lenders, values, details of your contribution, whether in money or kind, reference and account numbers, should be readily to hand.

   Collect as many papers as possible and make copies of the lot - title deeds to the home, investment properties, share certificates and super fund details.

   It is very useful to produce a chronological (in date order) short narrative of the history of your partnership, noting all major events of significance.

   Consider:

   • whether you may need to take money out of your joint bank account to get you through the first few weeks but it is most important to be fair - if there is $10,000 in an account, take out only $5,000.
   • changing the password on your accounts. The last thing you want your partner to do is spend all your savings.
   • applying to the bank to change your accounts to two signatories so you and your partner both have to sign.
   • organising with the bank to receive all correspondence relating to your accounts.
   • securing all your paperwork, preferably away from your home.

Other Issues

Other issues have arisen which are not strictly related to property division but are worthy of consideration. These issues are summarised briefly as follows:-

• Death

  Many jurisidiction around the world now recognise the entitlement of a surviving same-sex partner to inherit from their deceased partner however there is also quite often provisions enabling former spouses to inherit, especially where the same-sex relationship has not endured over a minimum time period.

  See also:

  GayLawNet® - Laws - Country - County/Province/State - Inheritance and GayLawNet® - Incapacity, Wills, Death & Inheritance.

  Where there is no such recognition for people in SSRs there is no right to inherit or receive benefits upon intestacy and usually the surviving partner is ineligible to claim under the provisions for testator's family maintenance.

• Social Security

  The Social Security legislation more often than not does not recognised SSRs though this is gradually changing. The position is apparently less clear where one partner is a transsexual living with a person of the "opposite sex".

• Superannuation

  In some jurisdictions it is not clear whether people in SSR's are able to benefit pursuant to the superannuation entitlements of their deceased partners. There is apparently a variety of legislation applicable and in any event, much is dependent upon the terms of the superannuation Trust Deed, whether there is provision for a specified beneficiary and the discretion of the Trustee.

  Some superannuation plans now include provisions for make a binding or non-binding nomination for the benefit of a same-sex partner. In this regard, you should make enquiries of your superannuation trustee and your Will should be "re-visited" to make sure it is consistent in spelling out your wishes.

• Statistical Information

  Thus far there is a dearth of statistical information. However, in this regard:-

  • statistical information on SSRs is now being collected in many jurisdictions, which reflects increasing public awareness of SSR's;

  • GLAD has recently performed a survey which contained anecdotal material in relation to the group surveyed. This survey has not provided any material which could be specifically relied upon other than to highlight the need for reform.

What is the present state of the law?

Many jurisdictions around the world have specific legislation in place affecting the rights upon separation of same-sex couples formerly living together in a shared relationship. See: GayLawNet® - Laws - Country/County/Province/State - Partners and Property.

If there is no governing legislation, "common law" concepts regulating the rights of parties as in other business-type transactions may be invoked by the courts. In general these rights are based on the law of contract and what lawyers call equitable remedies.

The "equitable remedies" flowing from this approach include such technical legal concepts as express, implied, resulting or constructive trusts, equitable liens, estoppel and acquiesence, accounting and undue influence. The law of contract and these "trusts" concepts are not easily grasped and usually form two 12-month subjects in the average law course!

Enforcement of you rights under these common law principles often proves to be a lengthy procedure and is inevitably costly.

What is wrong with the law?

• it is unnecessarily confusing and complicated when compared to legislation which has been enacted already in relation to marriage and sometimes de facto relationships;
• a party seeking a remedy will be involved in protracted and expensive proceedings;
• there is inconsistency of results in similar circumstances;
• due to the multiplicity of remedies, the approach to be taken in such matters is overly legalistic and complicated; and
• there is a multiplicity of courts in which proceedings may be issued, depending upon the value of the property in respect of which litigation is occurring.

If same-sex relationships were treated in the same way as opposite-sex relationships, then the cases which have been decided in connection with opposite-sex cases would apply equally to same-sex relationships.

In Australia, Alastair Nicholson QC, former Chief Justice of the Family Court of Australia, has indicated his strong support for inclusion of same-sex couples within the framework of the Family Law Act and it is possible that Australian Federal Law will be amended giving same-sex couples access to the Family Court of Australia.

See also GayLawNews™:

• "Family Court is for Gays Too" 22 May 2008
• "Former Chief Justice Calls for Overhaul of Same-sex Laws" 03 March 2007; and
• "Gay Divorce Easier?" 10 January 2008.

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