Domestic Partnership Agreements: A Relationship Protected By Law?
To some, the term “domestic partner” may seem a little avant-garde. It can be defined simply as “a person, other than a spouse, with whom one cohabits”. Or more formally as “a legal or personal relationship between two individuals who live together and share a common domestic life, but who are neither joined in traditional marriage nor in civil union”.
Why do we need to define the term “Domestic Partnership’?
The answer lies in a struggle for equal rights that has been taking place in Australia for the best part of a decade. That is, the equal rights of those who are in same sex relationships who feel their rights are being ignored; or worse, forgone, rather than those in opposite sex relationships.
A relationship protected by law?
While it may be argued that Australian law not only recognises same sex relationships, but also affords them the same legal rights as those in heterosexual relationships, it would be naïve to believe this is factually correct. As recently as October 2007, our newly elected Prime Minister, Kevin Rudd, is on record stating that [in his view]: “I have a pretty basic view on this [marriage], as reflected in the position adopted by our party, and that is that marriage is between a man and a woman.”
Moreover, neither same sex marriages nor same sex civil unions are currently recognised under Australian federal law. This is not to say, however, that same sex unions are not, as such, recognised by law. All states and territories in Australia do currently have in place laws that will to some degree or other recognise the rights of same sex couple who cohabit.
The simple fact of the matter, is that although most of these, so-called, “rights” are recognised by state law, they are based on the common law principal of a de facto partner – and thus must meet certain requirements. Anyone claiming a de facto relationship must be able to show that they have either
(a) been in the relationship for three (3) years or more, or
(b)
have had a natural child together.
While the second of these two requirements may not be beyond possibility, nature limits the chances! Thus, for a same sex partnership to enjoy any protection – even at state level – one must have lived with one’s partner for a minimum of three years.
An important question arises from this need: Couples may ask “How do we deal with the immediate?” If we need to live together for a period of three (3) years, then “how do we deal with a domestic partnership arrangement that is equitable and fair to us both while being valid in the eyes of the law?”
Same sex couples seeking to overcome the inadequacies of the current de facto legislation and provide protection for themselves in the first three years of cohabitation are choosing to draw up Domestic Partnership Agreements (also known as Cohabitation Agreements.)
Domestic Partnership Agreements
One should note, that regardless of any legislation currently before state legislatures around Australia, most states are either considering or have in process laws regulating Domestic Partnership Agreements. That being said, the underlying legal premise and legality of Domestic Partnership Agreements can be found in the Law of Contract.
A Domestic Partnership Agreement is a contractual agreement between consenting adults in which they agree to certain terms that will govern their relationship. It is essentially a ‘prenuptial agreement’ between people who are not married and who do not intend to get married or who cannot be married under law.
Why would you consider a Domestic Partnership Agreement?
One reason might be that both partners have significant assets and they want to define how these assets are dealt with if the relationship breaks down or a partner dies. You may have considerably more assets and less debt than your partner and you want to make sure these assets are retained by you or other family members such as children.
A domestic partnership agreement can lessen the turmoil that usually follows a relationship breakdown by spelling out the rights and obligations of partners and removing the burden of doubt.
The problem facing many samesex and de facto couples is discussing what will happen should their partnership fail in a time of great optimism and blossoming love. The idea of asking two people in love to consider their relationship ending just as it is beginning is one of the most unromantic notions you could have. In fact discussing such matters may even cause a little tension in the relationship.
But let's be realistic. In our society today 66% of all same sex domestic partnerships will end within 5 years. Arguments about finances and who contributes what are a common cause of relationship breakdown that can be reduced or avoided with a little planning.
What should be included in a Domestic Partnership Agreement?
Your agreement needs to cover all the potentialities, including how you will deal existing assets, gifts, living expenses, domestic duties, the death of either party and many other situations. Remember that a domestic partnership Agreement is a plan for a future eventuality. It is intended to serve as a safety net, preventing a problem further down the track.
What are the pros of a Domestic Partnership Agreement?
The overriding positive of Domestic Partnership Agreements is that they create a legal relationship between you and your partner a long-time before any de facto relationship is created. For some it may seem a little cheap defining your love as a contractual relationship – rather than the more solid feeling of having the right to say “we are de facto partners”. But, in an age when the chances of a relationship even lasting three (3) years may seem optimistic, it is a mechanism of ensuring that both partners know from the outset exactly where they stand.
What are the cons of a Domestic Partnership Agreement?
Because Domestic Partnership Agreements are subject to and enforceable, under the law of contract, your contract needs to be seen as an agreed financial arrangement first and foremost.This means that should it come before a court the court may judge an agreement unenforceable and set it aside if there has been fraud, misrepresentation, duress, undue influence or unconscionable conduct. Having said that, the courts will always strive to uphold a written agreement unless either party is likely to suffer a serious injustice.
To ensure the court cannot set an agreement aside, the parties may seek independent legal advice and have the agreement certified by independent solicitors. This makes the agreement legally stronger if there is a future disagreement about property or the agreement terms.
An inability to negotiate the financial issues, which will arise during cohabitation, is just one reason relationships breakdown. It is a sure sign of the strength and determination of a couple that they can discuss the practical and unromantic aspects of their relationship, openly and honestly. By being open you will help to minimise the possibility of finances being the cause of a breakdown.
Domestic partnership or cohabitation agreements should be with effective estate planning. At a minimum, couples are advised to effect wills when entering financial agreements. This ensures dividing an individuals property complies with their specific wishes, rather than by the statutory formula that applies when a person dies intestate.
Domestic Partnership Agreements