In South Australia, the law recognising the relationship of two people in a domestic partnership (formerly known as a ‘de facto relationship) is embodied in the Family Relationships Act (“the Act”).
Prior to amendments to the Act in August 2017, the only avenue for a couple who wished to have their relationship legally recognised was to obtain a Declaration from a Court that they are (or were on a certain date) the domestic partners, one or the other. This involves a formal application to the Court together with evidence of the relationship to be provided. After considering all the evidence and conducting a hearing, the Court then considers whether the Declaration should be made.
Since 1 August 2017 it has become possible for persons who fulfil certain criteria to register their relationship at the Births, Deaths and Marriages office. This is called a ‘registered relationship’ and the requirements for registration are set out in the Relationships Register Act 2016, which can be found at this link: http://www.austlii.edu.au/cgi-bin/viewdb/au/legis/sa/consol_act/rra2016266/
The registration of the relationship automatically qualifies a couple as a domestic partnership under the Act and eliminates the requirement to seek a Declaration from the Court.
It is still possible for a Declaration to be sought from the Court in the absence of a registered relationship. For example, where one party in a domestic partnership has died in circumstances where the relationship was not registered with Births, Deaths & Marriages. Another example is where former partners are required to prove they were in a domestic partnership when undergoing a property division under the Domestic Partners Property Act.
In the case one party has died without having registered his or her relationship, the surviving partner is required to prove that he or she was in a domestic partnership with the deceased partner as at the date of the deceased partner’s death. Whilst in many cases this is not particularly difficult, where the surviving partner was in a relatively short relationship with the person who has died, satisfying the minimum 3 year co-habitation requirement under the Act may be challenging where there are no children of the relationship. This can be further complicated if the surviving partner was the second partner of the deceased person and the deceased person left children from a previous marriage or relationship. The children may not acknowledge or accept that the surviving partner was in a domestic partnership with their late father or mother as at the date of death.
Registration of the relationship in such circumstances would avoid the need to prove the domestic partnership in fact existed.
Whilst it is necessary for a couple to prove that they are (or were as the case may be) in a ‘close personal relationship’ for the purposes of the Act, it is not necessary for a couple who register their relationship to prove this because the formal recognition of their relationship is automatic in the latter case.
In order for a relationship to qualify for registration, the partners to the relationship cannot be:
- legally married
- already in a registered relationship
- in a relationship with another person
- related by family
As highlighted above, there are clear benefits in registering a relationship under the Relationships Register Act. However where that has not occurred, it may be that you will require legal assistance in order to obtain a Declaration from the Court to have a relationship legally recognised.
Where a deceased estate is concerned, there may be additional challenges for a surviving partner aside from dealing with the loss of their partner.
Obtaining timely legal advice and assistance can help alleviate the uncertainty and stress often associated with the loss of a partner.
Feel free to contact us for an initial chat about your matter.