Dramatic New Legislation Creates Many Potential Changes for De Facto Couples Including Same-Sex – But Who Knew?

Dramatic New Legislation Creates Many Potential Changes for De Facto Couples Including Same-Sex – But Who Knew?

Written by Bev Clark 

The Relationships Register Act 2016 (SA) enables the registration of a relationship in South Australia. Registration is available from the 1st of August 2017. I have seen no media announcement in relation to this. I appreciate that on the 15th of November 2017 we will discover the outcome of the Australia wide postal vote on whether or not the majority of us agree to allow same-sex couples to be married in Australia.

Even if the vote is yes there will be some couples who choose not to marry – no different to heterosexual couples who may choose not to marry.

Regardless, couples are now able to register their relationship in South Australia.

At the present time, some parties in de facto relationships experience difficulties in obtaining entitlements from Centrelink, or in relation to insurance or superannuation because they need to establish through evidence that they are in fact an eligible de facto couple.

There are different criteria in different pieces of legislation as to what is required to establish such a relationship. This simply adds to the confusion and difficulties faced by many.

In family law, there are many cases where the parties may be in dispute as to whether or not a de facto relationship existed or when the relationship commenced and when it ended. The new registration legislation does not allow for a retrospective date to be allocated as at the commencement date for a relationship (when in fact the parties may well have already been in a de facto relationship for some period of time). At least they can register their relationship after the 1st of August 2017 and that will go some way towards eliminating some of the disputes we encounter in the Family Court today.

At the present time, the parties in a de facto relationship who need to apply to the Family Court for a property division, need to establish that they are not legally married to each other, are not related by family to each other and that having regard to all of the circumstances of the relationship they are a couple living together on a genuine domestic basis. For the Court to have jurisdiction to deal with the property settlement they need to establish that they have lived together for a minimum of two years, had a child together or made significant contributions to the assets of the relationship.

By registering their relationship they do not need to satisfy the threshold criteria to make an Application. The act of registration will effect various rights including rights to be recognised as a parent of a child under the Family Relationships Act 1975 (SA) which has a flow on effect in relation to a parent’s ability to consent to medical treatment, register with Medicare, apply for school and for passports and effects the child’s right to intestacy and superannuation, entitlements to Child Support or rights on injuries or death of a parent. There are also ramifications under the assisted rule in reproductive treatment including IVF.

Significantly, legislation relating to Wills is also effected. A Will is revoked by a subsequent marriage unless it is made in contemplation of the marriage. The Wills Act 1936 (SA) has now been amended so that a Will made by a person will be revoked by the person marrying or ‘commencing a registered relationship’. There may be many folk who unwittingly cause their Will to be revoked by registering their relationship in ignorance of the impact this may have upon a Will that they previously had prepared.

You can enact your Will to be made in contemplation of the registration of a relationship and then the Will can exist beyond the registration of the relationship. Rights in relation to inheritance claims or someone dying intestate or partially intestate are also affected by the registration of a relationship.

Registering a relationship will also make it easier for a person to make a claim with respect to a deceased person’s superannuation entitlements. This is particularly important if the relationship has not spanned the threshold period (usually three years).

The registration of a relationship appears to be straightforward. It is done online through the Department of Births, Deaths and Marriages. There are fees associated with the registration. You can receive a certificate and you can also participate in a civil ceremony to mark the registration if you choose. There is an equally simple process for registering the end of a relationship which can also be done online.

This is important legislation that can have some serious impacts on many members of our community.

If you have questions or want more information in relation to the benefits or disadvantages of registering your relationship please contact one of the experienced family lawyers at Belperio Clark on 8212 1322.

If you have registered your relationship or intend to register your relationship and you have a Will or if you have not yet prepared a Will but wish to, please come and see one of the experienced Wills & Estates lawyers at Belperio Clark.

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