In 2021, according to the Australian Bureau of Statistics, it was estimated that 8,747,135 people were married in Australia and 2,168,351 people were in a domestic relationship1. Whilst a domestic relationship is not legally a marriage, the parties of a domestic relationship can register their relationship and receive benefits similar to those of a married couple.
The vast majority of those in domestic relationships are unregistered relationships. There are various reasons why couples elect not to register their relationships, including:
- the perceived complexity, paperwork and cost involved;
- a preference for keeping the relationship more informal;
- the perception that virtually the same rights apply to those in unregistered relationships as those in registered relationships;
- registered relationships may not align with cultural or personal values and traditions; and
- a lack of awareness about the option to register a domestic relationship without getting married.
In Victoria, the Relationships Act 2008 (Vic) allows couples to register their relationship with the Registry of Births, Deaths and Marriages. To do so, both parties:
- need to take part in the registering of the relationship;
- must be over the age of 18 years;
- at least one party must live in Victoria at the time of the application;
- must not be married;
- must not be in a registered relationship or in another relationship that could be registered;
- provide domestic support to each other; and
- are committed to each other both personally and financially.
Most would assume that the registration of a domestic relationship is only important from a family law perspective. This is not the case. There are also potential implications on death for the surviving partner of the relationship. This is particularly relevant when a person in the relationship dies intestate (without a Will) or when a person seeks to make a testator’s family maintenance claim seeking provision or further provision as a ‘domestic partner’ from a deceased person’s estate.
Intestacy provisions for partners
In Victoria, if a person dies intestate, the distribution of their estate is governed by the Administration and Probate Act 1958 (Vic) (the Act).
In confining this discussion to partners, if an intestate person dies leaving a partner and no children, the partner is entitled to the whole of the deceased person’s residuary estate2.
If an intestate person dies leaving more than one partner and no children, the partners are entitled to share in the residuary estate of the deceased by agreement, by court order or in equal shares3.
Under the intestacy provisions, the surviving partner is always the major beneficiary of the deceased partner’s estate. Whether the deceased and the surviving partner had no children at all, or children together, or whether the deceased had children from a different/previous relationship, the surviving partner’s interest in the estate will constitute the majority share of the estate available for distribution. It is not surprising that the surviving partner will also have the strongest standing to apply to the Supreme Court of Victoria for Letters of Administration, in order to deal with their deceased partner’s estate on an intestacy.
There are occasions, however, where the nature of the domestic relationship is disputed, and questions arise as to whether or not the relationship was actually one of a bona fide couple living together on a genuine domestic basis. Merely living with a person in their home does not constitute an unregistered domestic relationship.
There are many instances where carers, housemates or friends living under the same roof try to claim they were living in a domestic relationship so that they can try to claim the deceased person’s estate.
What constitutes a partner?
The Act defines a partner of a person who dies as a “person’s spouse (married to the person at the time of the person’s death) or domestic partner”. A domestic partner of a person who dies means a registered domestic partner or an unregistered domestic partner4.
Registration of a domestic relationship in Victoria under the Relationships Act 2008 (Vic) is sufficient for automatic recognition of the status at law in Victoria and registered partners are treated similarly to married couples, regardless of how long the relationship has been in existence. However, an unregistered domestic relationship is treated differently and it must be proven. For example, the parties to an unregistered domestic relationship must live together for a minimum period of two years on a bona fide domestic basis (unless there is a child from the relationship). Therefore, registering a domestic relationship removes the uncertainty that can arise for a surviving partner, removing the need to prove the nature and extent of the relationship, and the circumstances surrounding that relationship.
If a domestic partnership/relationship is unregistered, and there is a dispute as to whether a domestic relationship existed, in accordance with the Act, the surviving partner must show that:
“… they were living together at the time of the person’s death as a couple on a genuine domestic basis, (irrespective of gender) and either:
a. had lived with the person in a manner continuously for a period of at least two years immediately preceding the person’s death; or
b. is a parent of a child of the person who was under 18 years of age at the time of the person’s death”5.
In other words, the deceased and the surviving unregistered domestic partner had a child together, who, at the time of the deceased’s passing was under the age of 18 years.
Where a person dies intestate, and there is a dispute as to the relationship between the deceased and the surviving unregistered partner, the surviving partner seeking to apply for Letters of Administration or challenge the estate for provision must prove the above elements. For example, where the extended family of the parties to the relationship do not approve and refuse to recognise the relationship, the surviving partner may need to prove the existence of their relationship through photographs, copies of bills, bank account statements and other evidence which supports the existence of the domestic relationship and its term.
The Relationships Act 2008 (Vic) identifies matters which may be relevant and taken into account in determining whether a domestic relationship existed, including:
- the degree of a mutual commitment to a shared life;
- the duration of a relationship;
- the nature and extent of common residence;
- whether or not a sexual relationship existed;
- the degree of financial dependence or interdependence;
- financial support between the couple;
- ownership and acquisition of property;
- reputation and public aspects of the relationship; and
- the care and support of children.
It’s important to note that if the domestic relationship is registered with Births, Deaths and Marriages in Victoria, the surviving partner does not need to fulfil the two-year requirement nor satisfy the elements set out above to determine the nature of their relationship. The relationship is effectively treated like a marriage.
What happens if the registered relationship breaks down?
A registered relationship is automatically revoked upon the death of either of the partners or if the partners get married to each other, or another person6.
In the event that a registered relationship breaks down, it is incumbent on the parties and highly recommended that the registered relationship be formally revoked with the Registrar of Births, Deaths and Marriages, and all of the paperwork properly completed to formally end the registered relationship7. If this is not effected properly and the relationship is not revoked, then the relationship is viewed in the same way as a separated married couple who have not applied for and/or received a Divorce Order.
Just as it is important to apply for a divorce, it is equally important to revoke a registered relationship following the breakdown of a marriage or registered domestic relationship. If a person dies after separation but before divorce or revocation of the domestic relationship, the surviving spouse or registered domestic partner is entitled on intestacy to receive a substantial benefit from the deceased’s estate. This may not align with the deceased’s intentions, particularly where the separation has been acrimonious or where the deceased has children from a previous relationship for whom the deceased would like to make provision.
Even where there is a Will if following separation, the marriage or registered relationship remains valid, then the deceased person’s estate may be exposed to the estranged spouse/partner being entitled to challenge the Will and receive provision from their estate.
Contact us
As identified above, there are many issues to consider when in a domestic relationship. As such, we recommend that you seek the advice of an experienced lawyer and review your circumstances to discuss the importance and benefits of having a Will.
If you would like further information about the impact of registering your relationship or are interested in making a Will, please contact a member of our Wills, Trusts & Estates team.
References
1. ABS Statistics, Households and Families: census reference period 2021, released 28 June 2022; domestic relationship is also known as de facto relationship
2. s.70J Administration and Probate Act 1958 (Vic).
3. s. 70Z Administration and Probate Act 1958 (Vic).
4. s.3 Administration and Probate Act 1958 (Vic).
5. s.3 Administration and Probate Act 1958 (Vic).
6. Section 11 (1)(a) & (b) Relationships Act 2008
7. Section 11(2) Relationships Act 2008
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