WHEN asked about the main legal issues she has encountered from de facto same-sex couples faced with a break-up, Mary Cunningham was forthright in her response.
“People often come to see me having incorrect advice from friends and family,” she said.
The Cunningham Legal proprietor added that some LGBTI community members were also not aware of the laws that applied to them.
Meanwhile, Michael Tiyce of Tiyce & Lawyers highlighted the issue of establishing the existence of a de facto relationship among couples in the LGBTI community.
“[It] can be problematic since many relationships in our community do not conform to traditional hetero-nuclear definitions or models,” he said.
“Establishing the existence of a de facto relationship is always the first step in properly advising a client of their rights or obligations.”
Another important step for newly-broken up same-sex couples to consider is a trawl through the Family Court website (link at end of story).
Both Cunningham and Tiyce say it can provide useful information and legislation. In addition, the Family Law Act covers both heterosexual and LGBTI couples, as well most separation issues such as kids and property.
“If your relationship broke down after 1 March 2009 — or after 1 July 2010 if your geographical connection is with South Australia only — a party can apply to the Family Court,” Tiyce clarified.
“However, if the relationship broke down prior to that time, the Family Court can still be the court of choice if both parties agree.
“If they do not agree, then the parties will need to make an application to the relevant State Court.”
Tiyce added that an application needed to be made to a court within two years of the end of a de facto relationship, unless consent is given by the court.
“It is also possible to enter into a binding Financial Agreement at the beginning, during or end of the relationship, which sets out the parties intention in respect to their properties,” he said.
Cunningham said the court also encourages couples to try to mediate an outcome before commencing court proceedings.
“Most parties reach a financial agreement this way,” she said.
“However, it is useful to have proper legal advice before doing this to ensure people are coming to an agreement based on proper legal principles. This is not to say people can’t settle on their own terms.
“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.”
Tiyce said same-sex couples who were “on the rocks” had a plethora of options available to them in the form of organisations that provide specialist counselling to either mediate an outcome of a break-up — or to even save the relationship all together.
“While most have some affiliation with religious organisations some, for example Jewish Care, are excellent resources for counselling for gays and lesbians,” he said.
“A specialist family lawyer will be able to provide appropriate referrals either for counselling or mediation, particularly where there are parenting issues involved.
“If you are further down the track, I always recommend that you ensure you have access to as many financial documents as possible, particularly prior to leaving home to make the process of advising your rights — by way of establishing the asset pool and your contribution to it — easier.”
Tiyce highlighted that in cases where at least one half of the same-sex de facto couple is not an Australian resident or citizen, problems may arise.
“[It] requires a family lawyer to work closely with a migration agent, many of whom also assist the gay and lesbian community,” he said,
“There are some exemptions in immigration laws which are common such as the existence of domestic violence which might mean remaining in Australia would be an option available to them.”
However, both Cunningham and Tiyce agree that Family Law is a specialist area and the problems that can arise in the LGBTI community require even more specialist attention.
“Always check your solicitor is in fact a community-recognised specialist in the area,” Tiyce said.
“The ramifications if they are not can be lengthy and expensive.”
For more information, visit: familylawcourts.gov.au