The Relationships Register Act 2016 and the register itself, recently came into effect this week (August 2017). A press release from the Premier’s Department heavily emphasised the ability for same sex couples to now register their relationship (like a marriage).
Of course, the register can be used by anyone in a relationship, gay or straight. However, and this is where I am critical of the press release (and most likely, any advertising or promotion of the register), in the apparent silence on the effect registration (or termination of registration) will have on your deceased estate.
“So what?” I hear you say, “Isn’t this a great step forward?”
Registering your relationship with Consumer and Business Services (CBS) means that the relationship is legally recognised. Anyone can register their relationship if they are 18 years of age or older and are in a relationship with another person as a couple. At least one person will need to live in South Australia. Couples may apply irrespective of their sex or gender identity. A relationship can’t be registered if you are married, already in a registered relationship or corresponding law registered relationship, or are in a relationship as a couple with another person and are related by family (yes, that is still illegal). It goes without saying, that relationships between individuals and animals will not be eligible for registration.
Prior to the introduction and implementation of the Act, unless you were married (thereby creating legal consequences and immediate recognition of the relationship), domestic couples or de facto couples needed to prove their relationship, most likely to a Judge, in order to progress some legal claims.
By way of an example; if you lived in a domestic relationship and your partner died without a Will you, as the partner, should be entitled to administer their estate and, depending on whether they had children or not, would be entitled to a majority of their deceased estate……..all this might occur, once you obtained a declaration from a judge that you were in a domestic relationship as at the date of their death.
That legal process can be cumbersome, expensive, challenged by others and very grey.
The factors determining whether a judge should rule that there was a domestic relationship are found in the Family Relationships Act and include the following;
- the duration of the relationship;
- the nature and extent of common residence;
- the degree of financial dependence and interdependence, or arrangements for financial support;
- the ownership, use and acquisition of property;
- the degree of mutual commitment to a shared life;
- the care and support of children;
- the performance of household duties; and
- the reputation and public aspects of the relationship.
Not all relationships are the same, they do not look the same and people don’t think the same.
So, the relationships register seems like a good idea doesn’t it? For the most part I agree.
If you are in a domestic relationship you can now formalise that partnership and obtain some legal recognition. It seems to be as easy as completing the forms and paying the fee (ah that’s right, there is a government fee), $108 to register (non-refundable the website says?) and $48.75 for a standard certificate but $68.50 for a commemorative certificate.
So, what is not being mentioned?
Evidence of a relationship is not required to register a relationship. Pay the fee and fill out the form and you are done. In light of this it is fair to surmise that many people will be motivated to register for other reasons. I’ll leave it to you to come to your own conclusions on that one.
“But an effective registration is legal, like a marriage” I hear you say.
It is important to understand, following a marriage, any valid Will you previously created becomes void (not altered ..VOID). Register a relationship – and, you guessed it, any existing Will becomes VOID!!
I didn’t read that on any website or promotional puff piece.
Imagine that you obtained a registration for a relationship, do the right thing and then update your Wills. If then you decide to terminate your relationship (I presume a further fee applies) then although the Will does not become void, your partner is removed from that document in any capacity, executor, controller or beneficiary unless a contrary intention appears in that Will.
There are even wider implications, especially for superannuation decisions upon someone’s death.
Most people are unaware of their superannuation balances, let alone whether they have been paying for life insurance within their public superannuation fund, which, if they died, must be paid out. We have seen numerous occasions where hundreds of thousands of dollars have been paid out in life insurance through superannuation where members and loved ones themselves had no idea of the existence of the funds or insurance.
You should check your superannuation statement now!
Even worse, many people are unaware they have some control over where those funds and insurance monies end up. It requires the completion of a beneficiary nomination form with the fund (whether it be binding or non-binding).
There are some funds which must pay to a spouse, if there is one, and leave no control to the member. If there is a registered relationship then they will pay to that partner…..even if you have been separated for years! That’s right, like a marriage, you can be registered (for your domestic relationship) but separated and simply have not yet terminated the relationship. In those circumstances, it may be possible for a superannuation fund to be forced to make payment to that former partner and not to your chosen beneficiaries.
The main aim of this article is to highlight that although it is great for South Australia to have a Relationships Register which does not discriminate between gay or straight couples, there are serious legal consequences at play here, and most, if not all, participants may not know of them.
I have many gay friends myself, many of whom I have personally assisted in the drafting of their Will documents. I anticipate a great enthusiasm for them to register their relationships and I celebrate with them in this move in the right direction towards marriage equality. However, my professional role calls me to work actively to educate the public, my clients and referrers, that there are far reaching consequences for paying the fee and filling out the form.
The government also has an important responsibility to do more to educate people on such legal consequences. I fear however, in this instance, they will not.
Help me spread the word!
If you, your friends, family or clients, are contemplating registering their domestic relationship they are strongly encouraged to seek legal advice first. The team at Welden & Coluccio lawyers have the knowledge and experience in the field of Estate Law to ensure you can move forward in your relationship with ‘peace of mind’ and assurance that your wishes will be maintained when the inevitable occurs.