Cohabitation just got more complicated…

It’s not “just living together” anymore…

women and men are taking more financial and legal precautions against a relationship breakdown

It used to be that a couple could decide to just live together for awhile without having to worry too much about what would happen to their stuff when the relationship ended. You could just divide it all up at the end and go on your merry way.

Not any more.

Recent changes to Australian legislation have switched the regulation of relationships from the individual states to the Commonwealth. This means that defacto relationships, both hetero and same sex now rest under the protective umbrella of the Family Court of Australia.

The Family Court views personal relationship differently. It -
” rates non-financial home making contributions more highly than the states,
” 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
” has policies and “toolboxes” that include a broad study of future needs as well as past considerations in making property adjustments

This means that de facto couples who satisfy basic criteria – such as being in the relationship for at least two years – will be treated in the Family Court in the same way as a married couple following the rule “what’s yours is mine and what’s mine is yours”.

If you end a de facto relationship that has gone on for longer than 2 years, either partner has the legal right to lay claim to any of the assets of the other partner just as if you were married.

You can protect your assets by using a Binding Financial Agreement (BFA). The term Binding Financial Agreement or BFA is given to an agreement made between two people living together whether they intend to marry or not, are married or not, or plan to separate or divorce. That is, a BFA can be made during a relationship or after it has broken down.

Binding Financial Agreements allow you to enter into agreements about how you will distribute your property or financial resources or maintain each other in the event that your relationship breaks down. It will generally bind the Court and keep the matters in the agreement and out of litigation.

A BFA is not just an exclusive financial risk-management tool for Hollywood celebrities. Increasing numbers of less famous couples are opting for written agreements to protect the financial assets each partner brings to the relationship. They see it as a form of insurance — a legally binding safety net that they hope they will never need.

Go HERE for more information

Adultery,Family Law and Asset Security in Gay or Hetero Relationships

Asset security in a relationship (be it same sex or hetero) is becoming more important in our modern society.

Adultery is making a comeback. It’s not that it ever really went away as a practice. But, suddenly, everyone is talking about it.

It started as a popular culture phenomenon, in television serials like Desperate Housewives. Increasingly, adultery is being blamed for the high divorce rate – and this obviously affects de-facto couples, both hetero- and same-sex. There are new kinds of it (internet infidelity, workplace infidelity, even emotional infidelity – the kind that doesn’t even require sex) and there are more folks who practice it (according to the experts, married women are now committing it in droves).

It adds up to an intensified anxiety over adultery, as a practice better avoided by those who wish to stay married, and as a practice increasingly worthy of moral sanction.

Because the laws apply to same-sex couples, married men with gay lovers could potentially end up in the Family Court. The changes could come as a shock to those who feel they are protected by their married status when it comes to extramarital relationships.

All of this is more than a little worrisome. 48% of Australian marriages end in divorce – there have been, until now, no figures for de-facto relationships either same-sex or opposite sex. Family law has more than enough to worry about trying to restructure financial relationships and restructure parenting relationships, with barely enough money to go around. It doesn’t need a return to vengeance and moral outrage to further muddy the waters. There is no upside. None of this is pretty. Australian family law got out of the fault business because it was too ugly, too difficult and too expensive to prove who did what to whom. “The L-word” (litigation) plays fine in California… do you really want to star in a local version of it?

The law is catching up with the complexity of social relationships. There is now no such thing as a hidden mistress. If a person has a second relationship outside of marriage or even two de-facto relationships in different parts of the same city or in other cities, then the second partner may be able to claim for a share of the assets in Family Court proceedings. This could come as a shock to those cheating wives or husbands who think that they are protected by their married status.

The laws declare that de facto couples who satisfy basic criteria – such as being in the relationship for at least two years – will be treated in the Family Court in the same way as a married couple. It also applies to same-sex couples.

Whilst I don’t suggest for a moment that every relationship, or 48% of relationships of any sort, will end in breakdown because of adultery, I’d have to say that I’ve had two serious relationships and apart from the one I’m in, the other broke down because my ex screwed people she met on brigade in Cuba… and if I’m an average person, well close to 48% of my relationships broke down with infidelity a part. Although with my ex, there were other factors… there are with everyone, aren’t they? Starting with the toothpaste tube or the TV or cleaning the kitchen?

Just about the worst way of being outed, or if you’re already out, having the tawdry details of your private life spread all over the media (especially if you live in a small town where there’s little else to entertain the locals) is to have serious litigation… The media cannot publish any information that identifies people involved in Family Court proceedings, but that doesn’t stop the “guess who don’t sue” type of story.… and let’s face it, if you’re seen going in and out of the local courthouse on Family Court sitting days, it’s not hard for locals to work out what’s going on.

Well, there’s a simple way to keep things private…especially if the way the two of you approach your financial and business affairs is, let us say, unconventional. Binding Financial Agreements are now available to same-sex couples as well as hetero couples, and 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’re cheap and easy, with kits and manuals freely available on the internet.

Same Sex Laws have Changed

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