The uniqueness of LGBTQIA+ disputes

Disputes within same-sex partnerships or among same-sex parents can originate from diverse sources, extending beyond the individuals involved and not necessarily resulting in a separation. These conflicts are not isolated occurrences; rather, they are socially constructed and often intricate in nature. As a result, changes in political, legal, moral, and cultural landscapes can impact relationships, trigger conflicts, and shape the optimal resolution of disputes between same-sex partners and parents.

Indeed, specific conflict triggers are deeply embedded in the socio-legal context within which same-sex partners and parents navigate. Elements such as social pressure, internalised social homophobia, a lack of self-confidence stemming from societal disapproval of homosexuality, and the absence of a unified legal framework protecting the rights of same-sex partners and parents can either give rise to disputes or intensify existing disagreements among partners.

The timing of conflicts related to finances, children, or inheritance may differ when compared to heterosexual couples. Frequently, same-sex couples grapple with these disputes prior to entering into a relationship, endeavouring to establish guidelines for the consequences and effects of their union in the absence of a comprehensive legal framework. Discrimination significantly influences the dynamics of such disputes.

Explore common sources of conflicts within the LGBTQ community

■ Financial disputes:

Disagreements related to finances encompass issues such as money, property, and the equitable distribution of shared assets. These conflicts may involve the provision of financial support for one or more partners and the financial maintenance of children (if any), whether they are the offspring of one or both partners. Same-sex couples regularly make unconventional financial arrangements that depart dramatically from both legal norms and typical cultural assumptions around familial obligations and financial positions within the family or relationship unit.

■ Inheritance (or estate planning) disputes:

Disputes over inheritance can arise from various scenarios:

• when two or more same-sex partners are planning the contents of a will;
• between the surviving partner and the family of the deceased partner, leading to potential legal issues related to inheritance law and emotional complexities surrounding whether the deceased’s family was aware of their homosexuality and the existence of the same-sex partner;
• when there are more than three same-sex partners who were financially supported by the deceased and expect a share of the inheritance;
• when there are diverse family and personal relationships involved, with interested parties potentially including a former heterosexual married and divorced partner of the deceased, the children of the deceased, the same-sex married or cohabiting partner of the deceased, as well as occasional partners.

■ Addiction to drugs or alcohol:

Issues related to substance abuse, whether involving drugs or alcohol, give rise to conflicts stemming directly from the substance use itself and its impact on the relationship. Consequences such as domestic violence and engagement in intimate relationships with other partners are prevalent challenges associated with drug or alcohol addiction.

■ Open-relationship:

• Disagreements within open relationships can arise from differing perspectives on whether to permit openness or from disputes stemming from disparities in preferences and characteristics desired in new partners. Additionally, competition for the attention of others serves as a significant source of conflict.
• Disputes can arise when one partner wants a closed sexual relationship, and the other wants to open it out to involve third parties. Tensions can emerge since: one partner may be comfortable remaining monogamous whilst the other looks elsewhere for sex; both may wish to look individually for sex outside their principal relationship (whether or not they continue with their own sexual relationship);
• Or both may want group sex together.

■ Coming out:
Revealing one’s sexual orientation, commonly known as “coming out,” encompasses situations where one partner may choose to keep their homosexuality undisclosed while the other encourages them to come out. It also involves scenarios where a partner discloses their bisexuality, shares their gender identity, or expresses a desire for gender reassignment.

■ Differences in expression:
Differences in how each partner expresses their sexual orientation and gender identity can lead to disagreements since they may hold opposing opinions on whether and how such information should be disclosed. Disputes may arise when one partner engages in stereotypical behaviours and attitudes associated with homosexuality or when another adheres strictly to conventional models of heterosexual masculinity or femininity, rejecting anything perceived as “too gay.” Regarding gender identity post-gender reassignment, disputes may involve a former heterosexual couple where one partner undergoes gender reassignment, or among same-sex partners when one expresses a desire for gender reassignment.

■ Homophobia and Bisphobia:
Conflicts may emerge due to the internalisation of external homophobia and bisphobia, leading same-sex partners to harbour dislike and resentment toward their sexual orientation. Alternatively, disputes may result from an external hostile and homophobic environment that directly impacts the relationship between the partners.

■ HIV/AIDS:
HIV/AIDS itself is not inherently a cause of dispute; rather, conflicts may arise from how the disease was contracted and the impact it has on the couple.

■ Parenting disputes:
Parenting disputes among same-sex partners are marked by a diverse range of mechanisms employed to conceive children and various parenting arrangements, rendering them unique and complex. These disputes may involve different scenarios, such as conflicts between two biological homosexual parents (a lesbian mother and a gay father) who may not be partners but have decided to conceive a child, between biological parents and non-biological parents (former and current same-sex partners), between a child’s two mothers and the sperm donor, among other configurations.

Why do same-sex couples choose mediation?

In addition to the well-known general benefits of utilising mediation, such as informality, privacy protection, lower costs, and the parties’ ability to control their disputes, there are specific reasons that advocate for the use of mediation.

Firstly, mediation may be the sole avenue to resolve intra-family disputes among same-sex partners, especially in instances where same-sex unions lacks recognition by their families. In such cases, same-sex partners may opt for mediation This presents a notable contrast with opposite-sex couples, raising concerns about the potential violation of the right to access justice. Mediation can play a pivotal role in providing partners and parents without legal recognition an opportunity to express their wishes that might otherwise be denied to them.

Secondly, even when court access is available, same-sex couples may prefer mediation due to concerns about potential homophobia within the court system, including among lawyers and court officials.

Thirdly, mediation is chosen because it has proven instrumental in recognising and validating family arrangements beyond those based on opposite-sex marriage, contributing to the empowerment of the entire LGBT community.

Lastly, in addition to personal preferences, the increasing legal protections for LGBTI individuals against homophobia and transphobia, along with the legal acknowledgment of same-sex unions since the 1970s, have often framed the recourse to mediation within a legal context.