PROPERTY DISPUTES

Are there differences for same-sex couples?

Same-sex relationships have begun to be seen as more ‘marriage-like’ by the courts, in the sense of being intimate, committed and financially interdependent. But property disputes in relationship breakdowns may have distinct features from heterosexual cases.

It appears very common for same-sex couples to have a property in only one partner’s name, even when sharing mortgage payments. This is because until 1999 couples in NSW could not amend the title to include a partner’s name without becoming liable for stamp duty on the value of the property. Even now many couples do not realise that the law has changed to allow a transfer of title to or from a partner without incurring stamp duty.

It is also likely that a number of same-sex cases will be raised late, as former partners will often not be fully aware of their rights and only seek legal assistance a long time after separating.
 
Lesbian couples often have children born during the relationship using assisted conception. If, on separation, any children remain living with the birth mother, she will not be able to use child support legislation to gain child support from her former partner. Some lateral thinking about other avenues for child support is needed here. It is worth considering proactive measures for the future, such as putting child support agreements in place through domestic relationship agreements. Your solicitor can draft one of these agreements for you and your partner.

If your case goes to court, your solicitor will also work hard to ensure the court is made aware that same-sex couples are not always identically situated to heterosexual couples. In one case the court held it against the credit of a gay man that he was not prepared to answer in open court whether his former partner had died of AIDS, and that in filling out an official form he had not disclosed that he met his present partner through an escort agency. In such situations the courts may need to be helped to understand that a gay person could expose himself to considerable risk of discrimination by responding truthfully, and that a lack of candour might be reasonable.