Watts McCray merges with Canberra law firm McGuinness Eley
Relationship Rights Q & A
Jenni Millbank is Special Advisor to Watts McCray Lawyers and Associate Professor of Law at the University of Sydney. She can answer your questions on same-sex relationships and the law.
Questions Answered:
- How do I prove I am in a de facto relationship?
- How do I prove my relationship for superannuation?
- What is the legal standing of surrogacy in Australia for gay men wanting to be fathers?
- What is a “domestic relationship agreement”?
- How can I enter into a domestic relationship agreement and how much will it cost?
- I read that the De Facto Relationships Act applies 11 tests to determine the legal validity of a de facto relationship, and that typically gay men can only satisfy 4 of these 11 criteria. Is this so?
- What relationship rights do I have at the moment?
- What rights do straight couples have that I don’t have?
- How is de facto recognition different from marriage or civil unions?
How do I prove I am in a de facto relationship?
One of the practical advantages of civil unions and registration systems is that the registration proves that the relationship exists, whereas with a de facto relationship you may have to prove it.
The first thing to note is that you only have to prove your relationship exists if there is someone who denies it. If you are still together this is easily solved by a statutory declaration or affidavit from both of you saying when you got together, that you live together and that you are in a committed relationship. You don’t need a court order to prove that your relationship exists.
Most frequently proving a de facto relationship is an issue when partners break up and one person, rather than denying it outright, claims that the relationship was much briefer than it was or that it had ended earlier even though the parties still continued to live together. Another common, though decreasing, scenario is where a couple are closeted, one partner dies without a will and their family denies the relationship existed and claims the inheritance for themselves.
There are a lot of simple things you can do to ensure that if you are placed in a situation of having to prove your relationship, you can do so. A relationship can be demonstrated through all kinds of evidence of cohabitation and commitment – jointly purchased property or names on leases, joint bank accounts, shared purchases of furniture or household items, or listing each other as next of kin on documents such as passports, superannuation funds and emergency contact forms. Even photos and joint invitations to social events or shared holidays are good evidence. You can also execute mutual wills in which you name each other as partners. You don’t need to prove that your relationship is perfect, or even that it is monogamous: the essence is that you live together and are committed to each other.
How do I prove my relationship for superannuation?
The main reason you would need to prove your relationship for superannuation would be if one of you died. Death benefits are usually sizable, and if they are passed directly to an eligible dependant they will incur a lot less tax than if they go to beneficiaries after passing through the deceased’s estate.
The problem with super is that proving you are in a de facto relationship is not enough. While heterosexual de factos and married couples are presumed by the legislation to be dependants, same-sex couples have to prove that they are in an “interdependent relationship”. This means demonstrating that one or both parties provided the other with “financial support” and “domestic support and personal care”. In earlier cases on other laws with the same wording, courts have interpreted “personal care” very narrowly as requiring bodily assistance such as with mobility, such that it would only really cover a relationship in which one partner was disabled, incapacitated or regularly ill. However it looks as though the “person care” provision will broaden - in some recent tax rulings on the super provisions, helping to lift heavy shopping was sufficient to qualify as “personal care”.
To protect your relationships, list your partner as your beneficiary in your super fund, keep evidence of interdependence, and also write a will in which you specifically leave any super benefits to your partner. That way your partner should be able to receive the benefits, either directly from the fund, or at worst through your will at a higher tax rate.
What is the legal standing of surrogacy in Australia for gay men wanting to be fathers?
There are three big issues with surrogacy, all of which impact on the likelihood of gay men being able to have a child of their own: 1. The Legality of Surrogacy Arrangements 2. Access to Fertility Services to conceive 3. Parental status of children born through surrogacy
The long answer addressing each of these points follows below under these headings. The short answer is that it is very hard to have a child through surrogacy in Australia because many states prohibit surrogacy arrangements (although NSW currently does not), fertility services discriminate against gay men, donor eggs are very rare, and finally if a child is born through surrogacy the legal parents will be the birth mother (and a male partner if she has one) not the commissioning parents. However if you are really determined and well resourced, these difficulties are not insurmountable, so read on…..
1. The Legality of Surrogacy Arrangements
There is often a distinction drawn between commercial and non-commercial or altruistic surrogacy. Most Australian states prohibit commercial surrogacy (ACT, Qld, Tas, SA, Vic). This means that it is an offence to pay of offer to pay someone to be a surrogate (in Victoria this includes the payment of medical expenses, but generally such expenses are not defined as commercial payments). Some states also prohibit non-commercial surrogacy (Qld, Tas, SA). In most cases in the states listed above, it is also an offence to advertise for a surrogate or assist with and advise upon a surrogacy arrangement – even if it is not commercial. So even lawful non-commercial agreements have to be arranged privately in most Australian states – the exception is NSW.
NSW does not currently have legislation on surrogacy. So at the moment (Jan 2006) it is not illegal to advertise for or enter into either a commercial or non-commercial surrogacy agreement in NSW. However there is a draft Bill (the Assisted Reproductive Technology Bill 2003) under consideration by government that, if passed, would prohibit commercial surrogacy and advertising for commercial surrogacy in NSW. If the Bill passed, non-commercial agreements would remain legal in NSW, as would advertising for them.
It is important to note that surrogacy agreements and arrangements are not contracts. You cannot enforce them in court. So if the birth mother changed her mind before, during or after the pregnancy you could not rely upon the agreement to compel her to relinquish the child. (You could initiate Family Court proceedings for residence or contact with the child, but this would be determined by an assessment of the child’s best interests, not on the basis of what was agreed by the parties).
2. Access to Fertility Services to conceive
The need to use fertility services will depend on the kind of surrogacy arrangement. “Partial surrogacy” involves a birth mother who conceives using her own egg. If this is what you want, and she lives close by, you may be able to simply use home insemination without needing to use a fertility service. Whether or not the egg is hers, the birth mother is a legal parents in all Australian states. However, having a mother who uses her own egg means that you cannot use the provisions for change of parental status in the ACT (which may also be introduced in Vic – see below). It also may make the arrangement more complicated emotionally, as in some cases it may make it more difficult for the birth mother to relinquish the child.
If you want to use donor ovum there are two difficulties – one is finding a woman who is prepared to be donor in addition to finding a woman who will be a surrogate. It is prohibited in all Australian states to pay an egg donor, although it is acceptable to cover medical expenses.
The second hurdle is finding a fertility service that will provide IVF services to assist in a surrogacy arrangement. In SA, WA, Vic and the NT, fertility services must exclude a surrogate and commissioning parents by law on the basis that they are not infertile (although note that Vic has recommended changing this). In Qld and Tas services must exclude surrogates because all forms of surrogacy, including non-commercial surrogacy, are illegal there. In the ACT or NSW it may be possible to access privately run services even if not clinically infertile, but it is unlikely that you would be eligible for Medicare benefits – meaning that the cost per cycle would be around $10,000.
All states still require a sperm donor to sign a “lifestyle declaration”. Declaring that you have had male-male sex in the past 5 years will mean that most services would reject you outright if you were an anonymous donor. As the donor to a known woman in NSW, it would likely result in additional storage and testing.
3. Parental status of children born through surrogacy
Once a child is born, there is the further issue of attaining parental status for commissioning parents.
Even though the child is biologically yours, because he or she was conceived through IVF or assisted insemination (whether at a clinic or at home), you will not be a legal parent unless you are the consenting husband or de facto partner of the birth mother. However a lack of parental status does not mean you have no rights. Any person concerned with the care, welfare and development of a child can apply to the Family Court for residence, contact or parental responsibility. You can do this simply by consent with the birth mother, or in contested proceedings without her consent in the case of a dispute.
In the ACT there are provisions for birth parent and commissioning parents to apply to the ACT Supreme Court for a change of parental status from the birth parents to the commissioning parents. These can be used by gay men, but only if: the commissioning parents live in the ACT, the child was conceived through IVF carried out in the ACT, the birth mother is not the genetic mother, at least one of the commissioning parents is a genetic parent, the birth mother and her partner both consent, and the baby is between 6 weeks and 6 months at the time of the application. So far the ACT is the only jurisdiction in Australia to introduce such provisions, but Victoria may do so as well.
It is not possible to use adoption orders in NSW to gain parental status, because privately arranged adoptions are not permitted, and because same-sex couples are not eligible to jointly adopt. You could conceive through sex, or marry the surrogate, either of which would render you the legal father of the child. A less extreme option is to apply to the Family Court for parental responsibility. This can grant the right to make major decisions about the child, such as medical care, applying for a passport and so on, and would include where the child lives. It is not exactly the same as parental status, for example it doesn’t flow through to areas such as inheritance, but it does say that you are the person responsible for the care of this child and in charge of what happens to them. The Family Court has made these orders in favour of gay men in recent years, including men who had a child from surrogacy arrangements made overseas. These orders have granted equal rights to the biological and non-biological father in a gay couple.
The Upshot:
It is possible to have a child through surrogacy in some parts of Australia – with the ACT and NSW being the most conducive. In NSW at the moment you advertise for a surrogate and can pay a surrogate, although you cannot pay an ovum donor. In the ACT you can’t advertise for a surrogate and you can’t pay either a surrogate or an ovum donor. In both NSW and the ACT you may be able to use a private IVF service for a surrogacy arrangement, although it would probably be fully self-funded.
Once the child is born, if you are in the ACT you can apply to have parental status transferred from the birth mother to the commissioning parents. If you live outside the ACT you can apply for parental orders by consent from the Family Court.
Get detailed legal advice on your plans and all the possibilities before you begin.
What is a “domestic relationship agreement”?
A domestic relationship agreement is basically a “pre-nup”, a binding financial agreement that you can enter into with your partner. You can enter into an agreement before or at any time during cohabitation. (After separation there is also the option of a “separation agreement” dividing property in a final way).
You need a lawyer to draw one up and both parties have to get separate advice from their own independent lawyer about whether or not the agreement is fair and in your interests.
This may sound like a vile and unnecessary thing to do when your relationship is going fine, but domestic agreements have some very important advantages. Firstly, although they mostly cover financial matters, you can also include a wide range of other things that courts don’t deal with that may be really significant to you – such as who gets to keep the pets, or which one of you will stay in your house if you split.
An agreement provides both certainty and flexibility: only in rare circumstances will courts overturn a properly executed agreement, but you can both vary it at any time by consent if things change and you want to make new provisions.
For lesbian couples with children these agreements are a simple and practical way to provide for child support in the event of a break-up – an issue that is otherwise incredibly complicated to resolve under existing law.
How can I enter into a domestic relationship agreement and how much will it cost?
The first thing you would need to do is sit down with your partner to talk through your contributions and expectations. Then you can visit a lawyer who will draw up an agreement. If you are happy with it then your partner needs to also visit a different lawyer to get independent advice on their position under the agreement.
You should expect that the whole process will cost a couple of thousand dollars. The clearer you both are about what you want, the faster and cheaper it will be. If you change your minds about what you want included, or can’t agree to terms and need to go back and forth with different versions, then the expense racks up.
I read that the De Facto Relationships Act applies 11 tests to determine the legal validity of a de facto relationship, and that typically gay men can only satisfy 4 of these 11 criteria. Is this so?
Section 4 of the Act, since 1999 renamed the Property (Relationships) Act defines a de facto relationship a relationship between two adult persons:
(a) who live together as a couple, and
(b) who are not married to one another or related by family.”
It is quite rare for there to be contention over whether a de facto relationship exists, so there is usually no need for a court to inquire into it. For example if a same-sex couple break up and need the court to divide their property, if both partners agree that they had a de facto relationship, then it won’t be an issue.
However, if there is disagreement over the relationship existing, for example if one partner dies and their family contests the inheritance, the Court can look at a range of factors. These factors are the same for straight and gay relationships.
It is important to note that these factors are only a guideline of issues to be considered. The Act instructs the Court to take “all the circumstances of the relationship into account”, to look at only those factors that are relevant to each particular case, and that no one factor or any combination of factors is necessary to establish a de facto relationship. This last point was included in 1999 in response to gay and lesbian community lawyers concerns that same-sex relationships may not have exactly the same features as heterosexual ones. We did not want our community disadvantaged for not conforming to pre-existing conceptions of what relationships of commitment require.
The list of factors is:
(a) the duration of the relationship,
(b) the nature and extent of common residence,
(c) whether or not a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
In cases that have been decided in the past five years it is clear that even same-sex relationships that don’t conform to standard heterosexual ideals will be recognised. For example:
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A number of cases have found that gay men in cohabiting couple relationships that were non-monogamous (including regular threesomes in one case) were still de factos because their primary emotional commitment was to each other.
- Gay guys who met originally through paid sex, but who later moved in together were held to be de factos.
- Closeted couples have been held to be de factos.
- Lesbians who kept separate bank accounts through the entire relationship were held to be de factos.
- In a recent heterosexual case, the fact that a couple had to live apart for an extended period of time while one partner cared for her ailing parents, did not stop the relationship from being a de facto relationship.
- In another recent heterosexual case the couple had been together for 6 years but had never had a common residence – instead they took turns in staying at each other’s house for most nights of the week. This was held to be a de facto relationship.
So it is not the number of factors that you satisfy that matters, it is whether on the whole your relationship seems committed and enduring. So far the court has interpreted the category broadly and there does not seem to be any cause for concern about a diverse range of same-sex relationships satisfying the criteria.
What relationship rights do I have at the moment?
If you live with your partner in a committed relationship then under NSW law you are in a de facto relationship. This means your relationship is recognised for almost all purposes in NSW law, such as guardianship, inheritance, property division and compensation laws (the exception is adoption). For some laws, such as property division and inheritance, you must generally have lived together for 2 years to qualify, but for most there is no time requirement.
What rights do straight couples have that I don’t have?
In NSW the main difference is that opposite-sex married and de facto couples can apply to adopt children as couples, while lesbian and gay applicants are only able to apply as individuals. In practice, individual applicants may have a lower priority.
Heterosexual couples also have comprehensive recognition in federal law – such as immigration, superannuation, taxation and family law. There is very limited recognition of same-sex couples in these areas of federal law.
How is de facto recognition different from marriage or civil unions?
There are a number of differences – in how you get to be in one, in the rights it gives you and whether the status goes with you if you move or travel.
De facto recognition automatically applies once you meet set criteria. This is good in that you don’t need to do anything formal to be recognised as a couple, but it is bad if there are aspects of your relationship where you didn’t want to be recognised– for instance if you never intend to share property. (Note however that this is the same for heterosexual couples, even if they chose not to marry, they will be ascribed de facto status). All couples can opt-out of some obligations, for instance by signing a “domestic relationship agreement” – basically as a “pre-nup” - to order property in the event of a break-up. Likewise couples can opt-out of ascribed inheritance rules by writing a will.
De facto recognition gives you most of the same rights as unmarried heterosexual couples and married couples under state law. In federal law heterosexual de facto couples have extensive recognition but this has not yet been extended to same-sex couples.
Whether or not you still have rights as a de facto if you go somewhere else will depend on the laws there. At the moment every state and territory in Australia except South Australia has very similar de facto laws to NSW - so you would be recognised everywhere except South Australia. There is de facto recognition in Canada and New Zealand, but not, for instance, in the United States.
Marriage requires a couple to register their intention to marry a month in advance and then go through a formal process. For heterosexual couples marriage in fact gives very few additional rights in Australia compared to de facto recognition (the main one is access to the Family Court to divide property on relationship breakdown instead of the more expensive and less flexible state courts– but this last distinction is also soon to change). Marriage is a more easily portable status than de facto, it is recognised in all state and federal law and in the laws of other countries also.
Same-sex couples cannot marry in Australia. As a result of the 2004 marriage ban, if same-sex couples do marry elsewhere (for example in Canada), their marriage will not be recognised in Australia.
Civil Unions require couples to go through a formal registration process similar to marriage. They exist in many European countries and have recently been introduced in the UK and New Zealand. Civil unions have been described as “marriage by any other name” when they grant equal rights and as “marriage-lite” when they do not. Civil unions may not be as portable as marriage, because they are a new status so other countries have to pass laws to specifically recognise them (although note that the UK and New Zealand have already done so).
There are no civil union laws in Australia to date. It is possible that the federal government lacks the constitutional power to introduce civil unions (as the power it is granted in the constitution is over “marriage”, “divorce” and “matrimonial causes”). This remains to be tested.
The states and territories could grant civil unions (and Tasmania already has a registered partnership scheme which is similar) but these would not grant any greater rights than those already held by de factos and could not translate into federal law.