Lovers, Domestic Partners Or Spouses?
In the “old days”, when life was simpler, couples were married or they weren’t, and the law didn’t need to deal with any middle ground.
The fashion of living together, initially as a precursor of marriage but later as a permanent relationship, presented challenges to law makers. The increase in same sex relationships raised further challenges.
Our laws now recognise the rights of partners living together but not married in various contexts, but not always consistently.
Those contexts can be upon the death of one of the partners, or upon a separation of the couple. Upon a death issues can arise in relation to the deceased’s estate, and the deceased’s superannuation.
The deceased’s estate is governed by State Law. The deceased’s superannuation is governed by Federal Law. If a couple separate during life- time the Family Law Act applies which is a Federal Law.
In the context of wills and estates, a person can have rights in respect of a deceased partner’s estate despite not being married to that person provided the couple lived as a couple on a genuine domestic basis and had done so for at least two years. If they had a child together the two-year requirement does not apply.
If the deceased person has not made adequate provision for his or her domestic partner in the Will, the domestic partner will have rights to challenge the Will.
The Administration & Probate Act (Section 3) defines domestic partner as someone who is a registered domestic partner or unregistered domestic partner. Both these terms are defined. “Spouse” is simple as that is a married person. “Unregistered domestic partner” is a person living with the person on death and having done so for two years or with a child. There is a further requirement to take into account all matter under the “Relationships Act”.
Despite the law appearing to require a couple to live together in the one house to meet the definition of domestic partners, there have been cases where a successful claim has been made where the couple have not lived in the same house. Usually this is where there is a good reason for them not living together, such as work commitments, but it is a grey area leaving the door slightly open to ambitious claims often made in the hope of achieving a settlement without going to court.
There can be a lot of argument about whether a couple are in a domestic relationship where the relationship is off and on, or casual, or where it is not clear that they live together on a “genuine domestic basis”.
From a legal point of view, being married makes the application of the relevant laws much simpler, but of course that does not cater for the wants or needs of many people in our community.
Justin Hartnett
Principal
T 03 5225 5220 | M 0419 571 840
E jhartnett@ha.legal
Daniela Pavlovic
Principal
T: 03 5225 5227
E: dpavlovic@ha.legal
