Finances, Marriage and Same Sex Couples

When opposite-sex couples say, ?I do,? they are immediately granted a whole host of rights and services. Opposite-sex, and now same-sex couples, in a ?de facto? relationship have to jump through several hoops before they are able to take advantage of those rights and services. Couples who choose not to be married and couples that are allowed legal marriage must prove that they are, in fact, in a ?common law? or ?marriage-like? relationship. Married couples simply have to get married.

Once a same-sex couple establishes a formal ?de facto? relationship, there are still significant differences between the rights and privileges of their legal relationship, and those of a legally married opposite-sex couple. For example, while the Family Law Act, which came into effect on March 1, 2009, entitles ?de facto? couples to seek property settlements in the Family Court and Federal Magistrates Court, but not always. In some cases rights for same-sex ?de facto? couples may not go beyond settling issues related to any children from that relationship in the event of a break up. In Western Australia and South Australia, the rights granted under the Family Law Act are quite limited. Married couples, however, can go before the Family Court to settle all matters of their divorce, including division of property and spousal support.

To make matters more complicated, laws with respect to how property is divided between same-sex couples in the event of dissolution of the relationship vary from State to State. Some States and Territories have laws that specifically address ?de facto? relationships, and some do not. Married couples do not have to deal with the same complications.

Now that same-sex couples have the same rights as unmarried opposite-sex couples, gays and lesbians have a new set of rules to learn about and to live by. For example, if you already have an estate plan, a cohabitation agreement, and other documentation in place it may need to be revised to reflect changes in the law.

If you and your partner have yet to embark on financial and estate planning, it is important to remember that while your relationship is equal to other ?de facto? relationships in the eyes of the law, ?de facto? relationships are not equal to marriage. Without legal marriage, your individual and joint financial stability is still vulnerable.

This landmark legislation is a giant step forward, but it will not solve all of your financial or legal issues. In fact, even if you and your partner were permitted to legally marry, you would soon discover that every relationship, no matter the official legal status, is more financially sound when you take the time to create cohabitation agreements and plan for your future.