The law reforms in Victoria have extended many rights to same-sex couples. But it is still important to understand how the law affects you and to take steps to protect your legal position.
What to do:
- learn about your rights
- get legal advice on your financial and parenting arrangements
- make a Will
- formalise your property arrangements with a legal agreement
- make a power of attorney.
Inform Yourself About Your Rights
The first and most important step is to find out how you are affected by legal issues in your own life. This publication is a good starting point, but you may need to use other resources as well.
There are many useful internet sites, publications and organisations that can give you information. Some are listed in this publication.
You might also want to get in touch with groups such as the Victorian Gay and Lesbian Rights Lobby to find out what you can do to help reform our laws. As you will see from the information in this booklet, there are still many areas of law that discriminate against gay men and lesbians. We will only achieve change by speaking out, lobbying and working together towards a fairer system.
Gay and Lesbian Switchboard
telephone counselling, referral and information
Tel 9827 8544
1800 184 527 (country callers)
Telephone Interpreter Service
Tel 13 14 50
Get Legal Advice
You can get free legal advice from Victoria Legal Aid or a community legal centre. If you need legal representation you need to be eligible, by meeting means tests and other guidelines. Some private solicitors offer a first appointment for free or at low cost - always ask about this. There are also legal centres and advice services that specialise in certain issues, for example HIV/AIDS.
The Law Institute's Legal Referral Service, GayLawNet and the Gay and Lesbian Alliance have listings of lawyers who are gay-friendly and deal with gay and lesbian relationships.
A lawyer's role is to explain your legal position, give you options, and advise you on the best action to take. They must act on your instructions. You do not have to take their advice. Make sure you ask questions if there's anything you don't understand.
If you experience discrimination from a lawyer, you can complain to the Victorian Equal Opportunity and Human Rights Commission or the Legal Services Commissioner.
Always check costs with a lawyer before signing a contract with them. Ring around to compare costs and services.
See: ‘Where to get help'
Make a Will
Everyone over the age of 18 should have a Will. You may think you don't own very much, but everyone has personal things that they might want their partner or close friends to have.
Making a Will is the best way to make sure that your property goes to the people of your choice.
If you die without a Will . . . your property will be divided up according to a formula in Victorian law.
Changes to the law have given inheritance rights to same-sex couples. This means that if you have been living with your partner as a couple continuously for at least two years at the time of your death, that person is your ‘domestic partner' and has the right to inherit your property.
If you are married, your spouse (person of the opposite sex) may also have some inheritance rights. If you want to keep control over who inherits your property, you must make a Will.
Despite the new law, your partner's right to a share of your superannuation is limited. Leaving it to them in your Will may be the only way they will benefit from your superannuation after you die.
For more information about Wills (and funerals) and what happens if there isn't a Will, see ‘Death and inheritance'.
Where to get help
Women's Legal Service
telephone advice and referral Tel 9642 0877
1800 133 302 (country callers)
Make a Legal Agreement
You can formalise property ownership or financial arrangements between you and your partner by making a property agreement. It is also important to keep financial records and receipts.
This will help avoid future problems if your relationship breaks down. See ‘Property' for more information. You can also make a legal agreement about parenting arrangements (see ‘Parents and children'). It is important to get legal advice about these issues.
Authorise Others to Act for You (Power of Attorney)
Your ‘legal capacity' to make decisions for yourself can be affected by illness or injury. To protect your long-term interests you can appoint someone now who will have the power to make important decisions for you if you become legally incapacitated.
You can appoint your same-sex partner or a friend or anyone else. The person you appoint should be someone reliable who you trust.
Before giving someone a power of attorney, discuss it thoroughly with the person you want to appoint. Your attorney (or guardian) must act ‘in your best interests'. To help them do this you should talk about what you would want in various situations.
If you don't authorise someone to act for you in future and you become legally incapacitated, decisions will be made for you by someone you haven't chosen. This could be your ‘next of kin' (possibly your partner) or a guardian or administrator appointed by the Victorian Civil and Administrative Tribunal or the state.
When a person makes any financial or legal decision or transaction, they must have the legal capacity to do so. ‘Capacity' means that they have to understand the consequences of a decision, be able to take responsibility for making a choice, and be able to make a choice based on the risks and benefits for them. For example, a person might lose legal capacity if they were in a coma or had dementia.
Types of powers of attorney
A General Power of Attorney allows someone to act on your behalf and make decisions about your property and finances.
For example, you would use this power of attorney if you needed someone to use your bank account while you are overseas. The General Power of Attorney is not valid if you lose legal capacity.
This is different from the types of powers of attorney that cover future incapacity (these are listed below). You must give someone these while you still have legal capacity. They can be cancelled by you at any time as long as you have capacity.
Enduring Power of Attorney
This is similar to a General Power of Attorney as it only covers decisions about property and finances. The difference is that it continues to operate if you become legally incapacitated.
Enduring Power of Attorney (Medical Treatment)
This means the person you appointed can make decisions about your health care, including consent to and refusal of medical treatment. It can have conditions attached to it, for example what happens if you're on life support. To help your attorney, write down your views about possible medical procedures.
This gives the person you appoint power to make decisions about general lifestyle, day-to-day care and living arrangements. They can consent to medical treatment, but unlike an Enduring Power of Attorney (Medical Treatment), they cannot refuse medical treatment.
For a guide to powers of attorney and guardianship, see the Take control kit published by Victoria Legal Aid and the Office of the Public Advocate. This can be ordered from Victoria Legal Aid on 9269 0223 and is also available on the VLA website at www.legalaid.vic.gov.au
You may also need legal advice about what is best for your circumstances.