Sunday, 13 May 2007

Same-sex couples recognised in SA

New laws come into effect in South Australia on 1 June 2007. These laws will give legal rights and duties to same-sex couples in areas like property ownership, wills, next-of-kin, and disclosure of interest.

The law applies to same-sex couples who live together as a couple on a genuine domestic basis for 3 years or more.

The South Australian Attorney-General's Factsheet:

Fact Sheet - Domestic Partners

A new law recognising the rights of domestic partners in South Australia has recently passed the Parliament and will take effect on 1 June, 2007.
The law gives new legal rights and duties both to same-sex de facto partners and also to other partners who may not be in a sexual relationship but live together on a genuine domestic basis as a couple.
Legal rights and duties arise if the partners have been living together in this way for three years or more.


• Who is affected by the new law?

The new law covers any two adults who live together as a couple on a genuine domestic basis, whether they are related or not, if the living arrangement endures for at least three years.
It thus covers people who live in an opposite-sex de facto relationship, those who live in a same-sex de facto relationship and those who live together as close companions or life partners.
That is, it covers all unmarried couples who meet the requirements.
The two people must have a close personal relationship: the new law does not catch people who are simply flatmates. It does not catch boarding arrangements. It does not catch commercial arrangements, such as a live-in housekeeper or paid carer.
A typical example of a relationship to which the law applies could be two single women who set up home together and share their lives in a similar way to a couple, in a relationship of mutual affection and support, even though they are not in a sexual or romantic relationship.


• How can I tell if my living arrangement is recognised by the new law?

In case of dispute, it is up to the courts to decide whether a living arrangement is or is not a domestic partnership. The court will have to assess whether you are genuinely a couple, using a list of factors.
Things to be considered are:

• how long you have been living together in the relationship: legal recognition occurs after three years of sharing your home as life partners.
• whether you both share the whole of the home in common or whether each of you has separate areas: having separate living quarters under one roof may suggest that you are not really a couple.
• does either of you financially support the other, wholly or partly? do you keep your money separate or do you pool it?
• do you own property separately or do you share it or own things jointly - for example, is the house in joint names? do you have other property to which you have both contributed or which is in both names?
• are you each committed to a shared life?
• are you raising children or providing care for children together, or have you done so in the past?
• do you each do your own housework or do you share it or carry out household tasks for each other?
• the reputation and public aspects of your relationship - for example, do your friends think of you as a couple? do you socialise together or separately?

Another factor is whether you have made a domestic partnership agreement under the Domestic Partners Property Act (see below). That will tend to suggest that you are domestic partners.
None of these factors on its own is decisive and it does not matter if they are not all present. The more of them apply, however, the easier it will be for the court to conclude that you are genuinely living together as a couple.
In many cases it will be obvious that the two people are a couple and no court order will be needed, but there are a few situations where a court order is legally required.


• Enduring Power of Attorney, Enduring Power of Guardian & Wills

The new law does not prevent partners from making other arrangements giving each other legal powers and it could still be useful to do so.
For example, an enduring power of attorney can be used to give your partner authority to handle your money and property in case you become incapacitated. That does not happen automatically just because you are domestic partners.
Likewise, an enduring power of guardianship can enable your partner to make lifestyle decisions for you in that situation: your domestic partner is not your legal guardian unless formally appointed by you or by the authorities.
You can also use a medical power of attorney to appoint your partner to make medical treatment decisions for you when you cannot. The absence of such a power will not stop your partner from being able to make these decisions, but having the power can avoid any doubt or delay.
Likewise, it is sensible for every adult to have a current will that says how you want your property shared out on your death.


• When does the three years start?

The new law applies to existing couples as well as to people who start living together in the future. That means that the time you have already lived together before the law changed counts towards the three years. So, if you have already lived together as a couple for three years or more when the new law begins, then you are covered immediately. If you have been living together as a couple for two years when the new law starts, you will be covered by the new law after a further year, if you are still living together as a couple then.


• What does the new law do?

The new law gives legal rights and duties to domestic partners. These legal rights and duties can affect your property. For example:
• if one of you dies without having made a will, and you had continued to live together up till the date of your death, the other one will be able to inherit some or all of the estate and can apply to be appointed administrator.
• if one of you makes a will that cuts out the other, then upon that person's death, if you are still living together as domestic partners, the other person may be able to take court action for a share of the estate.
• if the relationship breaks down at any time after three years of living together, and you separate, either of you can ask for court orders allocating a share of the other person's property to you, based on your financial and non-financial contributions during the relationship. How much you might be entitled to is up to the court.
• if one of you is killed in a road accident caused by a negligent driver, or in a work accident, or by homicide, the other one may be entitled to claim compensation.

The new laws will treat you as a couple for some legal purposes, for example:
• if you transfer your shared home from one partner's name to the other or into both names, you will not pay stamp duty.
• if either one of you is appointed to a statutory board or council, then for the purposes of declaring conflicts of interests, you must declare not only your own interests but those of your partner.
• if either of you is elected to your local council or to Parliament, the financial interests of the other one will need to be disclosed on the register of interests.

The new laws will also treat you as your partner's next of kin in some situations, for example:
• if one of you needs medical treatment but cannot give consent because of incapacity, the other person will be able to give consent.
• if one of you becomes mentally incapacitated, the other one will be able to apply to be appointed that person's legal guardian or appointed to administer the person's property, or both, if you have not already provided for this as above.
• if one partner dies, the other one will be able to make decisions about organ donation, post-mortem examination and cremation of the body.
• What if a dispute arises about whether we are really domestic partners?

If there is a dispute, the court will decide whether the law applies to your situation. Either one of you, or someone else whose legal rights are affected, can ask the court to decide.
• Can we clarify matters using a legal agreement?
Yes. You can make a written agreement (called a 'domestic partnership agreement') about your living arrangements, including your property. For example, the agreement could say what is to happen to the property you each own if the relationship ends and you separate. The agreement is like a contract so it can be enforced in court. However, if the court thinks the agreement is unjust, it can override it. If both of you want to prevent the court from overriding your agreement, you can arrange to have it certified by a lawyer.
An agreement can be made at any time, including when you are about to start living together, and it is legal from the time it is made, but you will still have to live together for three years before you are legally recognised as domestic partners: the agreement on its own does not achieve that.


• What if I don't want these new laws to apply to my living arrangements?

You should seek legal advice as soon as possible. You can modify some of the results of the new law using legal steps such as a will, power of guardianship and domestic partnership agreement. However, you need legal advice about what you can achieve and what legal steps you need to take. Do not delay in seeking this advice.


• Legal advice is available from:
Legal Services Commission ph 1300 366 424
The Law Society's Advisory Service ph 8229 0222
Your local community legal centre See White Pages
A private legal practitioner See White Pages or use the Law
Society's referral service

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