AS A MATTER OF EQUALITY

Here is a new post coming from a Community ally, Scott Hall!

If you are in a long-term same-sex relationship that is ending, how do you split up the property or debt between you and your partner? Arkansas law specifically governs the separation and divorce of heterosexual married couples. There is an Arkansas statute stating that upon divorce, property should be distributed equally to both parties, unless the division would be inequitable.  Courts also have authority and discretion to divide debt between divorcing parties.

But what about same-sex couples that are living together? Arkansas does not recognize same-sex marriages, even if the marriage occurred out of state. In 2004, the Arkansas Constitution was amended to state that “[m]arriage consists only of the union of one man and one woman.” Due to the state of Arkansas law, same-sex couples in Arkansas must resort to complex and expensive litigation in order to determine the parties’ rights and obligations upon splitting up.

For example, there was a case in the Arkansas Supreme Court in 1980, wherein a gentleman named Benjamin sued his same-sex partner, James, for the return of real estate. Benjamin opened a bank account in his partner’s name and deposited $7,000.00 in it. Benjamin wanted James to use the money to purchase a home in James’ name, in an effort to hide the property from Benjamin’s wife, whom he was divorcing. James purchased the property, and he lived on it with Benjamin. According to Benjamin, James was supposed to transfer the home to Benjamin once his divorce was over. Benjamin and James later had a falling out, and they broke up. Benjamin moved out, and sued James in order to get the home. After what appears to be a lengthy lawsuit, the Arkansas Supreme Court sided with Benjamin. Under such circumstances, Benjamin and James could have side-stepped this problem by having a contract governing their living situation.

Due to the fact that same-sex couples cannot rely on Arkansas marriage and divorce laws, they ought to consider an alternative arrangement – a contract commonly called a Domestic Partnership Agreement. A Domestic Partnership Agreement is a legally binding agreement for couples that share a life and a home. It is similar to a prenuptial agreement, and it unfortunately shares many of the negative connotations of a “prenup.” A couple, be it a heterosexual couple or a homosexual couple, may not want to sign a contract governing ownership and use of property, as it may convey the message that the parties do not think their relationship will last. However, a Domestic Partnership Agreement addresses the parties’ expectations and obligations. It is a matter of planning for your future.

Arkansas courts have not definitively addressed Domestic Partnership Agreements, but other states have. Therefore, consulting with your choice of attorney is the first step in determining whether a Domestic Partnership Agreement is for you and your partner.

M. Scott Hall is an attorney practicing in the Fayetteville, Arkansas, office of Hall, Estill, Hardwick, Gable, Golden & Nelson PC (www.hallestill.com).  He focuses his practice in the areas of civil litigation, family law, and business transactions. He is admitted to practice before all state and federal courts in Oklahoma and Arkansas. Scott received his Juris Doctor from the University of Arkansas School of Law in 2006. He has been an advocate of LGBT rights since junior high due to his mother’s philosophy on overall equality, and is grateful to count among his best friends those that are members of the LGBT community.

“If every gay person in Australia stood up and said this is me, get over it, the whole shabby charade would be finished.”

Michael Kirby is a former justice of the High Court of Australia. He is the world’s first openly gay justice of a national supreme court. When he retired, he was Australia’s longest-serving judge.

Kirby was born in Sydney, Australia. He attended Fort Street High School, which is renowned for the accomplishments of its graduates. He earned three bachelor’s degrees and a Master of Laws degree from the University of Sydney.

Kirby practiced law for 13 years. In 1975, he was named deputy director of the Australian Conciliation & Arbitration Commission. Subsequently, he served as judge of the Federal Court of Australia, chairman of the Australian Law Reform Commission and as president of the New South Wales Court. In 1996, he was appointed to the High Court.

A pioneering AIDS activist, Kirby served on the World Health Organization’s Global Commission on AIDS and the United Nations Global Commission on HIV and the Law.

In 1991, Kirby received the Companion of the Order of Australia, the nation’s highest civil honor, and the Australian Human Rights Medal.

In 1999, Kirby came out when he named his long-term partner, Johan van Vloten, in his listing in “Who’s Who in Australia.” The couple has been together since 1969.

In 2010, Kirby received the Gruber Justice Prize for his work on sexual orientation discrimination and international human rights law, including laws relating to privacy and HIV/AIDS. In 2011, his biography, “Michael Kirby: Paradoxes/Principles,” was published.

Kirby lives with his partner in Sydney, where he advocates for LGBT equality and for people with HIV and AIDS.