What’s different for LGBTI couples?
There’s plenty of advice for heterosexual couples regarding separation and divorce, less so for members of the Lesbian, Gay, Bi, Transgender, Intersex (LGBTI) communities. According to the Star Observer newspaper, LGBTI clients are often unaware of the legal situation regarding their relationship, or that the Family Law Act in fact covers LGBTI couples as well as heterosexual couples in respect of issues like separation of kids and property. The Family Court website can be a useful starting point for LGBTI couples to familiarise themselves with their rights and obligations under the law.
One of the difficulties can be that it is first necessary to establish the existence of a defacto relationship, and this can be “problematic since many relationships in our community do not conform to traditional hetero-nuclear definitions or models”, one LGBTI-specialist lawyer told the Star Observer.
Parties can apply to the Family Court if their relationship broke down after 1 March 2009 (or after 1 July 2010 for South Australia). If a relationship broke down before then, parties can still choose to use the Family Court if they are in agreement to do so; otherwise they will need to make application to the relevant State Court. An application needs to be made to a court within two years of the end of a de facto relationship, unless consent is given by the court.
The courts encourage parties to mediate before matters reach court stage, and many financial agreements are reached this way. Parties are also reminded of the importance of ensuring they have access to necessary financial documents and other ways of substantiating the ‘matriomonial’ asset pool and parties’ respective contributions to it.
Before things go pear-shaped, though, LGBTI couples are encouraged to enter pre- and post-nups (or Binding Financial Agreements) which set out parties’ intentions with respect to their assets. The importance of obtaining proper legal advice is stressed so that agreements are based on proper legal principles, even when parties reach agreement amicably or without lawyers. Says one solicitor:
“In my experience, the person leaving the relationship may feel guilty and compromise in a way they do not need to in a financial settlement or the person who has been left feels they should get more because of the behaviour of the other. While those things may injure feelings these are not the principles in determining a property adjustment.”
Same-sex couples can also avail themselves of a number of community organisations providing specialist counselling or assistance with mediation, with family lawyers able to provide such referrals.
Do you need assistance with an LGBTI family law matter? Please contact us for advice, on (02) 6223 2400. We are an experienced LGBTI law firm.
Read more: http://www.starobserver.com. au/life-style/relationships- life-style/what-to-do-if-it- all-falls-apart/135199
