Owning Property

What Property?
Ownership of Property
Manner of Holding
Property Agreements
 

As a general statement, the law in many countries does not offer gay and lesbian partners the same protection as that generally available to heterosexual couples.

If you already own property with your partner or are planning to purchase property with your partner, it is extremely important that the arrangements are properly documented from the outset to carefully set out your respective interests.

Please read disclaimer

See also: [Divorce, Separation] [Incapacity, Wills, Death & Inheritance] [Partners]
[Ezine - Divorce: Revocable Trust, The] ["The Gay Divorcees"], [Relationship LLC's]

GayLawNet® Owning Property
Updated on 11 November 2011 at 2230L (GMT+11)

What Property?

The most valuable asset you may own or be buying together is your house.

You may also be in a business partnership, own shares, a life insurance or superannuation policy, a shack in the country or the car together. To ensure you are both adequately protected in the unhappy event that the partnership breaks up, it is vital that the relevant documentation reflects your respective interests and/or that you have a property agreement setting out those interests, with an agreed procedure for division.

This is a delicate matter and any discussion with your partner may give rise to feelings that you do not trust each other. It may be preferable to consider the matter from the perspective that your respective families could otherwise unreasonably interfere and cause you or your partner significant stress at a difficult time. Be sensitive and introduce the subject for discussion very carefully.

See below: Property Agreements.

In a number of countries in Europe, Canada, the United Kingdom, several States in the US, and in the majority of states and territories in Australia, there are laws in place granting a degree of protection to safeguard gay and lesbian couples.

See: Laws - Country - County/Province/Region/State - Partners pages.

If it is your intention to provide for your partner in the event of your death or you wish to have someone look after your personal and financial affairs in the event of an accident or serious illness:

See also: Inheritance, Wills, Death & Incapacity;
Buying Property (particularly with regard to term life and incapacity insurance);
Partners; and
The Revocable Trust.

Ownership of Property

All property can be owned and held either "jointly" or in specific shares as "tenants-in-common". The documents of ownership should reflect the manner of holding the property and in land transactions in Victoria it is presumed to be held jointly if not otherwise specified.

See: Inheritance, Wills, Death & Incapacity for more important information.

Changing the Manner of Holding Property

You can change the manner of holding property from sole proprietorship to joint tenants or tenants-in-common however, in land and share transactions government stamp duties and charges may add up to a large sum.

Some jurisdictions now treat transfers between same-sex couples on the same basis as heterosexual couples, where such changes are specifically exempted from stamp duty.

If these exemptions are not available, then it is important for gay and lesbian partners to settle these matters prior to entering into the purchase contract.

Property Agreements

If when you purchase property you each initially contribute unequally it is advisable to prepare a property agreement to avoid later difficulties.

This agreement should include a formula for later valuing, putting the property on the market and dividing the proceeds of any future sale of the property fairly.

In the event of one partner dying, such an agreement may avoid relatives unfairly gaining at the cost of the surviving partner. It may also avoid clever "legal" arguments along the lines that the non-financial partner is simply holding the property in trust for the greater contributor or even that the interest was given in a situation where an "under influence" or pressure was exerted.

So, whilst the present situation generally remains unsatisfactory for gay and lesbian partners around the globe, you should seek legal advice before becoming involved in making any substantial financial or non-financial investments or outlays in relation to property.

In Australia, since 01 March 2009, the Family Court of Australia has jurisdiction to decide property disputes between same-sex couples, one or both of whom were ordinarily resident in New South Wales, Victoria, Queensland. Tasmania, the ACT, the Northern Territory or Norfolk Island, for at least one-third of the duration of the relationship [ss90SD, 90SK, 90SL]. The Court has the power to divide property, and also superannuation, applying the same considerations as would be the case for opposite-sex or heterosexual matrimonial cases.

See: Partners - Partnership, Living or Co-ownership, Cohabitation Agreement/s and also Property / Cohabitation Quenstionnaire, which may assist you in preparing necessary information for your lawyer to draw up a property agreement.


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