In August 2017, 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 and Estate Planning.
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 Act 2016. The changes, which come into effect in August 2017, give more legal recognition than ever before to LGBTI people and de facto relationships in general.
Why would I want to register?
The purpose of the Relationships Register is to provide legal recognition for adults in a relationship as a couple (other than marriage), irrespective of their sex or gender identity. Importantly, this includes both heterosexual and same-sex couples, and so it includes same sex marriages that took place overseas.
From 25 August 2017, adults in a registered relationship will have their date and place of registration recorded on their child’s birth certificate. When you die, your partner’s name will now appear on your South Australian death certificate if your relationship was registered.
From 1 August 2017, registering your relationship also adds another layer of complexity to estate planning, the process of preparing a will, and disputes over deceased estates – discussed below.
Registering your Relationship
To register your relationship, both adults need to complete the form and statutory declaration (available on the SA Births Deaths and Marriages website – https://bdm.cbs.sa.gov.au/bdmsaonline/dbweb.asp?dbcgm=1&prprc=rla) and pay the fee. It is important to note that at least one of the adults must live in SA, and if you were previously married then you can’t register a new relationship until obtaining a divorce from your former spouse.
Just like a marriage, if the relationship with your partner ends then you should ensure the registration is revoked. One or both partners can apply for revocation.
There will be a cooling-off period for registering the relationship (28 days) as well as revoking the registration (90 days). As of August 2017, the fee to either register or revoke the relationship is $108.00.
How does this effect my Will?
For many years, getting married or divorced have affected your Will.
If you have a valid will and then get married, SA legislation 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 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 are in a relationship and choose not to register your relationship, there will be no effect on the validity of your will.
How does this effect my estate planning, superannuation and disputes over deceased estates?
If you have superannuation with Police Super or SuperSA where the benefit is generally paid to a spouse, registering your relationship will make it easier for your partner to access your super when you pass away. Contact Police Super or SuperSA for more details.
For other funds, to claim your partner’s super you may be asked to provide a statutory declaration and other evidence of your shared life and dependency. It will now be easier to prove that relationship if the it was registered.
If you die without a Will, someone usually needs to be appointed to administer the estate (like the executor named in a Will). Previously, if your partner wanted to be appointed they would need to first prove to the Court that they met certain criteria, such as having lived together with the deceased person as a couple and for a minimum length of time. However, now if the relationship was registered then this overcomes the need to prove all that to the Court.
In South Australia, certain family members can apply to the Court for further provision from a deceased estate if they feel what they are due to receive is not adequate. This includes a child, spouse or partner, and others. Previously, an unmarried partner making a claim would have to apply to the Court for a declaration that they were the domestic partner at the date of death, with evidence about the length and quality of the relationship. However, now if the relationship is registered there is no need to obtain a declaration and there is no minimum length of time requirement.
Other things to consider
If you and your partner wish, you can have a Relationship Ceremony at the Registry of Births, Deaths and Marriages or privately. You can also apply for a Certificate similar to a birth or death certificate, for the same fee as those other certificates.
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.