What's Mine Is Yours... Right?

Support, By Christian Taylor, 29th April, 2008

This week, in the last of our Self Protection series, we take a look at gay relationships and the law, and find out where we stand legally when we decide to shack up with the one we love.

“Believe it or not, when I came out to my parents the first thing they did, before anything else, was get on the phone to our family lawyers,” said Kane, now 32. “I guess it was because I also mentioned that I’d been living with my boyfriend for two years.” According to Kane, they were more concerned about losing the family fortune to a gold digger, than they were about his sexual orientation. “I didn’t know whether to be relieved or completely appalled!”

While his parents’ response to his coming out caught him by surprise, it also gave him plenty to think about. At the time he was young and in love – he hadn’t considered that he was actually in a de facto relationship, nor had he given any thought to what that really meant.

In Australia, all states – except for South Australia – see de facto relationships in a pretty similar way. Couples who live together – gay or straight – and who are not married to one another or related by family are automatically granted de facto status. This can be both a good and a bad thing, depending on your situation and perspective. According to Ghassan Kassisieh from the NSW Gay and Lesbian Rights Lobby it’s not all as scary as it sounds.

“[Law reform in this area meant,] among other things, that same-sex couples could have their property divided for them by a court, if they wanted to, upon the breakdown of a relationship according to the financial and non-financial contributions made by the parties during the relationship. It also changed inheritance laws so that a same-sex partner is considered next of kin – this means a deceased partner’s family can’t just swoop in, take everything owned by the couple and lock out the partner from the estate, medical decisions and funeral arrangements. This horrifying situation was unfortunately not uncommon where a family was homophobic and didn’t recognise the relationship.

“Before the law reform, when the gay son or daughter died, the family could just ignore the partner and take over. Now the law says that families cannot do this anymore – a same-sex de facto partner is just as important and valid as a heterosexual partner.”

The automatic nature of de facto relationship recognition can be problematic if there are aspects of your relationship that you don’t want recognised – like, for instance, if you don’t wish to share your property. That being said, it’s not like a partner can just swan in and take everything you’ve got. “In regards to property rights the couple generally must have first lived together for at least 2 years,” says Ghassan. “A casual partner or even a short-term live-in partner can’t just take your property if you die or break up. Property division is also reliant on proving what financial and non-financial contributions you have made during the relationship.”

However, that being said, if the words ‘what’s mine is yours and what’s yours is mine’ don’t roll so freely from your tongue, there are ways to opt out of these obligations and protect what’s yours.

First things first – make a will. Generally, the wishes of the deceased will be followed – unless the will is contested. Another way to keep boundaries nice and clear is for couples to enter a domestic relationship agreement, also known as a “pre nup”. If it is arranged correctly, it will be binding, and will determine what happens to property if a relationship breaks up. Both parties have to get separate advice from their own independent lawyer about whether or not the agreement is fair and in each person’s interests. It should cost around $3000, which is cheaper than a messy court dispute later down the track.

While most of the time there’s no need for someone to prove that they’re in a de facto relationship, sometimes things aren’t so clear cut. Sometimes there’s a disagreement over the relationship existing. A good example would be if a partner died and the partner’s family contested the inheritance.

If a court needs to make a decision on whether or not you were in fact in a de facto relationship, there are a number of things they will look at, and they’re the same for both straight and gay couples. They’ll look at the duration of the relationship, the nature and extent of their common residence, whether you had a sexual relationship or not, your degree of financial dependence or interdependence, the ownership, use and acquisition of property, the degree of mutual commitment to a shared life, the care and support of children, the performance of household duties and the reputation and public aspects of your relationship.

There are some interesting cases of quite unconventional relationships being deemed by courts as being de facto, including a non-monogamous couple who had regular threesomes, another couple who met through paid sex and then moved in together, couples who were still in the closet, lesbians who kept their money in separate bank accounts their entire relationship, even a couple who had separate houses but often spent the night at each other’s homes.

At the end of the day you’ll only have to prove you’re in a de facto relationship if someone denies it. But it’s worth keeping a few things in mind. If you don’t own property or share bank accounts then keep good records – get both your names on the lease, keep receipts of things you both buy. Keep documents and photos from shared holidays. Definitely write a will. Name your partner as an executor or choose an executor who you trust will respect your wishes and your relationship. Name your partner as your de facto partner and your next of kin – this can then be used as proof at other times, like if they have to make medical decisions on your behalf. Encourage your partner to do the same too. It’s worth nominating a beneficiary in your super fund too.

While Australia has a long way to go in terms of gay relationship recognition, it’s good to know the things we can all do to protect and look after ourselves and those we choose to share our lives with.

Other articles in the Self Protection series:
Pick On Someone Your Own Calibre.
Be Prepared.
Breaking The Cycle.

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