Same Sex Laws and Cohabitation

It's 25 years in the making! It's 25 years since the NSW Anti-Discrimination Act 1977 was amended to include the ground of homosexuality. 25 years since the NSW Parliament decriminalised adult male homosexual sex. 20 years since the formation of Gay and Lesbian Rights Lobby, one of the first victories of which (around the same time) was the change of definition of discrimination used in the Human Rights and Equal Opportunity Commission Act, so that discrimination on the grounds of sexual preference in employment was made unlawful. 15 years since the publication of the first edition of The Bride Wore Pink by the Gay and Lesbian Rights Lobby as a discussion paper on legal recognition of same sex relationships.

All huge steps, often taken for granted by younger gay and lesbian people today, much as the gains of the suffragettes are taken for granted by many of today's feminists.

But the recent victory is a logical consequence of the earlier ones. Lesbian and gay male couples now have equal rights under the Family Law Act. Our cohabitation agreements, now covered by Federal law, can be dealt with in the Family Court, as can issues with our kids, issues with superannuation if we split up, all property issues, all maintenance issues.

Gay male and lesbian couples now have the same access to informal dispute resolution systems, cheaper and faster than the state regimes, as married couples and, now, opposite sex de-facto couples. All you have to show is that you have are a couple living together on a genuine domestic basis, with a mutual commitment to a shared life. Common residence is more important than a sexual relationship, so it is theoretically possible that a person can be married in, say, Brisbane and still be in a de-facto same sex relationship in Perth. You'd find it hard to prove, but by no means impossible: marriage to one person does not mean that you can't be de-facto with someone else and it's also possible to have several de-facto relationships at the one time if there's enough period of time spent in common residence on a genuine domestic basis. A factor in the court deciding whether or not there's a relationship is the degree of financial dependence or interdependence, and any arrangements for financial support, between two people.

The Family Court tends to attribute a higher value to non-financial homemaking contributions than State Supreme Courts because of family-based guidelines, and has broader powers to make property orders or issue injunctions against third parties, including creditors and family companies which are in the legal control of one partner but not the other. Its policies and "toolboxes", unlike State Courts, include broad consideration of future needs as well as past considerations in making property adjustments.

There's a bit of "hit and miss", as there is with divorces. One simple way for same-sex couples, especially if they live in areas where they are in fear of outing themselves and don't wish to register a relationship, is to sign a Binding Financial Agreement... preferably before the relationship breaks down, because usually then it is too late.

Binding Financial Agreements allow you to enter into agreements about how you will distribute their property or financial resources or maintain each other in the event that your relationship breaks down. Agreements will be possible during a de facto relationship (hetero- or same-sex), or after it has broken down.… and generally these bind the Court and keep the matters in the agreement out of litigation. Separation is stressful enough as it is without added cost and stress over court processes.

If you're thinking of leaving one partner for another, a Binding Financial Agreement settles the claims of the former lover - free of stamp duty and capital gains tax issues - and allows for a smoother run into serial ... well, for want of a better term, monogamy. Best of all, they are cheap and easy, with kits and manuals freely available on the internet.

To date, New South Wales, Queensland, Tasmania and Victoria have passed legislation referring power to the Commonwealth. Existing constitutional power over the territories enables the commonwealth to legislate in relation to the Australian Capital Territory and the Northern Territory.

Before the changes, there was no access to the federal family law courts for opposite-sex and same-sex de facto couples in relation to property and maintenance matters... only to resolve child-related matters. If de facto couples, opposite- or same-sex, had children and their relationship broke down, they found themselves with children issues in one of the federal family law courts and property issues in a State court, with unnecessary additional costs and inconvenience, as well as an administrative burden on the federal and State court systems.

Generally, unless the relationship is registered under state or territory law, application can only be made if the period, or total periods of the relationship, is at least 2 years; or there is a child of the relationship. A child of one member of a lesbian couple born as a result of artificial conception procedure (including "turkey-basting", but not including picking up someone at a pub one night) is counted as being a child of both members of the couple: for gay men, the child must be formally adopted.

Binding Pre Nuptial Financial Agreement

Binding Post Nuptial Financial Agreement

Binding Separation Financial Agreement