Your Will

Separated but not divorced

You’re separated but not divorced … do you know that your ex may still receive your assets upon your death?

If you are dealing with a separation from your spouse, the last thing you may be thinking about is updating your Will. However this may be the most important time to consider your estate planning.

If you do not have a valid Will, your estate assets will be divided according to legislation, specifically, the Administration and Probate Act 1919 (SA). The law dictates that if you do not have a valid Will:

  • If you do not have children: Your spouse will receive the whole of your estate; or
  • If you have children: Your spouse will receive the first $100,000 of your estate (plus personal chattels) together with half of the remainder. Your children will receive the remaining half in equal shares.

This will occur regardless of whether you are together or separated, if you are still legally married.

If you are going through a separation, it is also important to think about any assets you may have in joint names with your spouse. Assets owned in joint names do not form part of your estate/Will upon your death. So no matter what you put in your Will, if the assets are owned jointly they will go the surviving joint asset holder. If you have jointly held assets with your spouse and you would not be happy for them to receive those assets upon your death, this is an incentive to formalise your Family Law property settlement. Having an updated Will is sometimes not enough!

Another important asset is your superannuation. Superannuation does not automatically form part of your estate/Will upon your death. Rather, each individual superannuation fund has their own rules with respect to who they will distribute your superannuation to. It may be the case that your spouse will receive the entirety of your superannuation upon your death, if you are still legally married.

To rectify this, you may complete a Binding Death Benefit Nomination with your superannuation so that you -choose who receives your entitlements upon your death. It is important to note, however, that most nominations will lapse after three years unless you refresh or make a new nomination.

What about de facto relationships?
The above will still apply if your partner is considered to be a “domestic partner”, which under the Administration and Probate Act 1919 (SA) is when:

  • You have registered your relationship with your partner under the Relationships Register Act 2016 (SA); or
  • They have received a declaration from the Court that you were domestic partners at the date of death.

What if you have re-partnered?
Remember that jointly held assets with another person do not form part of your estate. Therefore if you have assets held jointly with your new partner, the assets will go to them.
If, however, you did not divorce your former partner and they unintentionally receive assets upon your death, there are some options for your new partner which include:

  • Attempt to negotiate with your former partner and reach a mutual agreement about the distribution of your estate;
  • If your new partner is held to be a “domestic partner”, they become eligible to make a claim under the Inheritance (Family Provision) Act 1972 (SA). Your new partner would have to prove they have not been adequately provided for and should be given more from your estate.

The definition of “domestic partner” includes when a person is living with the other in a close personal relationship for three years or there is a child of the relationship. There are various aspects which constitute a “close personal relationship”, so it is important to discuss this with a lawyer.

So how do I get a Divorce?
You must firstly be separated from your spouse for a minimum of 12 months, and also have your original marriage certificate. If you do not have your marriage certificate, you may be able to order a new one from Births, Deaths and Marriages.

To arrange a divorce, an application is made to the Federal Circuit Court. The application may be a joint application which both you and your spouse sign. If you do not want your spouse to sign the application, you can make a sole application, however you will be required to give evidence that you provided a copy of the application to your spouse.

A Court hearing is then scheduled at the Federal Circuit Court in Adelaide. If you have made a joint application, you will not be required to attend. If you have made a sole application and there are children under the age of 18, you will be required to attend the hearing. Alternatively, your lawyer may attend on your behalf.
The divorce will come into effect one month and one day following the hearing.

How we can help
Tindall Gask Bentley recognises that it can be difficult to steer your way through a separation. Let us help you become financially separated from your former spouse, and to ensure that your assets are distributed in accordance with your wishes upon your death. We want you to have the satisfaction of having your affairs in order, so contact our Family Law team and Wills and Estates team as we are here to help you!