The issue of marriage equality is a hot topic in today’s media. Irrespective of your own personal beliefs on this issue, it is important that people are aware of how to protect their legal interests, as well as the sanctity of their relationship, particularly if they are in a same-sex relationship
In this blog, we share some legal tips on estate planning and family law matters for couples in same-sex relationships.
Create a Will
Having a Will and naming your same-sex partner as the Executor and/or primary Beneficiary is a good way to ensure that in the event you were to pass away, your partner will inherit your estate and be able to make the appropriate arrangements for your funeral and burial and the like.
Too often we hear of a situation where one of the partners in a long term same-sex relationship passes away, and because a Will was not drafted, the next of kin reverts to the departed’s parents who have alternate views on how and where their son or daughter should be laid to rest. This scenario is further complicated by the inability of the same sex partner to deal with assets such as bank accounts, property and personal effects. In a time of grief and emotional turmoil, there would be nothing worse than adding the horrific pressure to your surviving partner to also have to justify and prove your relationship so they can carry out your wishes after your death.
Consider Powers of Attorney
Power of Attorneys are as equally important as drafting a Will. Similarly to the Will scenario outlined above, if you do not have a Medical or Financial Power of Attorney nominating your same-sex partner as your Attorney, in the event that you become medically incapacitated or travel overseas and are unable to access bank accounts etc, your same-sex partner could be rendered powerless to assist you in your hour of need.
By having these documents in place, it also further legitimises the nature of your relationship so that if the will was to be challenged, you have legal documents in place that confirm your relationship to each other.
If you are in a same-sex relationship and have accumulated assets or bought property together, and/or are cohabitating, we would recommend having a Financial Agreement drafted. This document can be drafted prior to cohabitation, during cohabitation and after a separation.
A Financial Agreement is a legal document which outlines the assets each party brings into the relationship, sets out any joint assets that have been purchased together and how they were purchased between the parties, and also in the event of a separation (if the Agreement is made pre-cohabitation or during cohabitation) how the property and assets will be split between the parties.
Like a Will and a Power of Attorney, this is another legal document which further documents the status and nature of your same-sex relationship and eliminates any uncertainty or misinterpretation that your relationship is of a friendly or ‘room mate’ type status.
Register Your Relationship
Each state in Australia has a registry where you can formally register your same-sex relationship (in Victoria it is known as the ‘Births Deaths and Marriages Registry’). By doing this, you are legally registering the nature of your relationship with each other. This can be particularly important if you have children together that may not be biologically either both or one of the parties. If this is the case, you may also want to consider formal adoption of your non-biological children, so that there is a legal acknowledgement of your role as a parent.
The team at Legally Yours strongly believes in marriage equality and that ‘love is love’, no matter whether it is between a man and a woman, or two people of the same gender. We fervently hope that marriage equality will exist in Australia in the not too distant future, however, until such time as this is the case, we would highly recommend that couples who are in same-sex relationships consider the aforementioned legal tips.
Whether you are in a heterosexual or same-sex relationship, it is important that you have valid Wills and Power of Attorneys in place that nominate your loved one as your next of kin. A Financial Agreement is another legal document that further acknowledges the nature of your relationship and also sets out how property and assets will be dealt with in the event of a separation.
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This article is written by Karen Finch and was first published on the Legally Yours website.
This article does not constitute legal advice or a legal opinion on any matter discussed and, accordingly, it should not be relied upon. It should not be regarded as a comprehensive statement of the law and practice in this area. If you require any advice or information, please speak to practising lawyer in your jurisdiction. No individual who is a member, partner, shareholder or consultant of, in or to any constituent part of Legally Yours Pty Ltd accepts or assumes responsibility, or has any liability, to any person in respect of this article.