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The new Relationships Register and how it affects your Will

In December 2016, SA Parliament passed a number of Acts relating to LGBTQI people and de facto relationships. TGB lawyer Adam Osborn looks at how  marriage, divorce and the new Relationships Register affects your Will.

Imagine your partner were to die unexpectedly and there was no legal recognition of your relationship. All decisions are out of your hands and you can’t even be named on their death certificate. This was the scenario faced by Marco Bulmer-Rizzi when his husband, David, died while on honeymoon in South Australia early last year, despite the fact that they had been legally married in the United Kingdom.

It was a heartbreaking situation that has lead to legislative change in South Australia and the passing of the Relationships Register Bill 2016. The changes, expected to come into effect shortly, give more legal recognition than ever before to LGBTQI people and de facto relationships in general.

It is a victory for equality in SA, but registering your relationship also adds another layer of complexity to the process of preparing a will.

Marriage and Divorce

If you have a valid will and then get married, SA law sets out that marriage revokes your will entirely.  So, if you are in a relationship it is important to consider whether you may one day marry your partner.  If you plan to get married after signing your will – or even think that this is a possibility – we can prepare your will to include words that overcome this automatic revocation.

When you get divorced, this also affects your will.  If you appointed your former spouse as your executor or included them as a beneficiary, only these aspects of your will are revoked by divorce.  No other person is affected, whether you have named them as executor or beneficiary.  So if you expect to get divorced after signing your will and do not want the divorce to affect the parts of your will relating to your former spouse, we can also prepare your will so your divorce has no effect.  Of course, this is not a common request.

Registering your Relationship

Until now, your will was not affected either by simply starting a relationship or separating from your partner. However, this will change with the introduction of the Relationships Register.

If you and another person are in a relationship apart from marriage you can apply to have your relationship registered, which will give it some degree of legal recognition. Importantly, this includes both heterosexual and same-sex couples, and therefore covers same sex marriages that took place overseas.

At the time of writing it is not yet clear how far this recognition will extend, but it will allow for such things as your partner being named on your Death Certificate, meaning no one will have to again experience what Mr Bulmer-Rizzi did last year.

If the relationship ends, you will be able to revoke the registration.  An application can be made by both parties together or either one of them.

There will be a cooling-off period for registering the relationship (28 days) as well as revoking the registration (90 days).  There will also be a fee for both actions, which is yet to be announced.

How the Relationships Register affects your Will

Registering your relationship will have the same effect on your will as getting married – it revokes it entirely.  This applies to existing wills as well as those made after the new law comes into effect.  However, wills made after the new law comes in can be prepared to include words that overcome this automatic revocation. This covers people expecting to register their relationship in the same way as those expecting to get married after signing their Will.

If you have the registration revoked, this will have the same effect on your will as a divorce – it will affect those parts of your will appointing your partner as executor and naming them as beneficiary, but has no effect on the remaining parts of your will.  As with an impending divorce, if you expect to be revoking a registered relationship after you sign your Will, it is important to consider the effect and have your will prepared accordingly.

If you and your partner choose not to register your relationship, there will be no effect on the validity of your will.

If you intend to register your relationship you need to consider how the changes in law may affect you. Having an up-to-date will is the only way to ensure your wishes are carried out in the event of your death.

For further information or assistance with your legal matter contact us. You can also start your Will online here.

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