Divorce, Separation

When you and your partner are separating ...

What to Do?
  1. Talk to your partner
  2. Reach for the Agreement
  3. Make a list
  4. Seek professional advice
  Other Issues
What is the present state of the law?
What is wrong with the law?

"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 the "What to do?" and portion of "Other Issues" paragraphs, 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.

See also: GayLawNet® - Laws - Country/County/Province/State - Partners and Property
"The Gay Divorcees" - NSW Property (Relationships) Act 1999

GayLawNet® Divorce, Separation
Updated on 12 February 2012 at 2230L (GMT+11)

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 such an account, take out only $5,000, or only such amount as you may objectively and reasonably be entitled to and can justify with evidence.
    • 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:-

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 - Civil Unions, Partners and Property.

Where same-sex couples have gained the right to marriage, their rights and responsibilities are the exactly the same as those applying to opposite sex couples.

Where same-sex couples have gained the right to enter into a registered civil union or domestic partnership, their rights and responsibilities will almost mirror those of opposite-sex couples. Often the same will apply to unregistered de facto same-sex couples however, the relationship may require a qualifying period of time (perhaps 2 years) before various rights accrue.

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?

In the absence of comprehensive legislation regulating the break-up of same-sex or de facto relationships -

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, indicated his strong support for inclusion of same-sex couples within the framework of the Family Law Act and on 01 March 2009 Australian Federal Law was amended giving same-sex couples access to the Family Court of Australia (see LAWS - AUSTRALIA - FEDERAL - PROPERTY.