Same Sex Partnerships – How Do They Affect Your Will?

As same-sex marriages and partnerships have increasingly entered the vernacular of modern society, there is an expectation that legislators and lawmakers will keep up with the times. While in many ways, the law in Australia has overcome the lack of formality in same-sex partnerships through the concept of ‘de facto’ relationships. This form of relationship is defined by the Family Law Act 1975 (Cth) as a relationship within which the two partners (of the same or different sex) are not married, but still live together on a genuine domestic basis.

While in theory the concept of a ‘de facto’ partnership presents itself as a near-identical alternative to a formal marriage, the lack of formality in a de facto, or same-sex partnership, can still create issues for will-makers (‘testators’).

Why The Need For Formality?

The key distinction between married and de-facto partnerships lies in the concept of marriage itself. When a couple gets married, it is widely agreed upon by society that this constitutes not only a formalising of a couple’s personal relationship with one another, but it also signifies a marriage of their financial affairs. Similarly, when a married couple divorces, the unification of their affairs, both personal and financial comes to an end.

In the context of Probate law, marriage and divorce both have the effect of revoking a will [1]. At present, the initiation and dissolution of de facto partnerships do not have the same operative effect in any jurisdiction of Australia, other than in Tasmania [2].

While the Courts do not have an enormous amount of trouble in dealing with de facto partnerships, the absence of a marriage and divorce has the effect of placing the burden of proof on the de facto partner that their relationship ever existed.

By way of example, imagine if an individual enters into a same-sex partnership and during this time writes in his will that he will bequeath the entirety of his estate to his partner. After some time, the relationship breaks down and ends. In the subsequent years, the individual enters into another same-sex relationship with a different person, but fails to update his will reflecting the change in his circumstances. When the individual dies, although his most recent partner will undoubtedly have a Family Provision claim, the onus will be on that partner to demonstrate that the relationship even existed.

Proving a de facto relationship can be burdensome at the best of times – unlike a marriage, with a clear date of initiation, it can be difficult to pinpoint a clear starting point for a de facto relationship. This point can cause significant grief where the deceased dies intestate. Although Victorian law grants de facto partners of a deceased their residuary estate [3], a person will only be considered a de facto partner if he or she can adequately demonstrate that they had lived with the deceased continuously for a period of at least two years before the deceased’s death [4].

Thus, while the state of Australian law is neither overtly, nor even intends to be, discriminatory towards same-sex couples, existing laws regarding de facto partnerships place a much higher burden of proof on claimants.

So How Do I Prevent This From Happening?

The key to prevent estate disputes after your demise is to ensure that your will is regularly updated. Generally speaking, your will should be updated whenever a ‘significant life event’ occurs – this could be when a large asset is purchased or sold, when a child is born, or more relevant to our discussion, when your relationship takes on a permanent, domestic nature.

The other alternative of course, is to assist the current government in organising the promised plebiscite – for once, however, a visit to your lawyer may prove more fruitful!

In light of the above, if you think that you may find yourself needing to Defend a Will or Will Dispute,  please do not hesitate to contact the team at Hentys Lawyers today.

[1]Sections 13 and 14,Wills Act 1997 (Vic)

[2]Section 16(1)(b), Wills Act 2008 (Tas)

[3]Section 51,Administration and Probate Act 1958 (Vic)

[4]Section 3(1),Administration and Probate Act 1958 (Vic)

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