Couples who wish to have their domestic relationship formalised or recognised, but do not wish to get married, can register their relationship under the Relationships Register Act 2016 (SA).
Before taking this step, parties should be aware of the other legal effects this will have. This article provides some general examples. Of course, every matter is different so you should speak to a lawyer about your particular circumstances if you are considering registering your relationship in South Australia.
A couple will be eligible to register their relationship if:
- They are both over 18;
- At least one party resides in South Australia;
- Neither party is married, in a relationship as a couple with another person, or in another registered relationship;
- The parties are not related.
Eligibility is not affected by the parties’ sexuality or gender identity, which means that members of the LGBTQ+ community are not prevented from registering a relationship.
Revoking a registration
The registration of the relationship is automatically revoked if one of the parties marries or dies. Otherwise, one party can apply to revoke the registration with proof that they have provided notice to the other party that they want to do so.
Benefits of Registering a Relationship
There are some situations where couples, especially those within the LGBTQ+ community, might face difficulties if their relationship is not recognised. Registering the relationship is an inexpensive way to have it formalised without getting married, and potentially save the costs and hassle of trying to prove that a domestic partnership exists if something goes wrong. For example:
In some scenarios, only spouses and immediate family will be allowed to visit a patient in care. A partner may be turned away if they cannot prove they are a spouse of the patient. Having a relationship certificate that you can produce to hospital staff will eliminate this issue.
This being said, you can ensure that your partner will be present with you and have a say in your medical decisions, without the need to register the relationship, by drawing up an Advance Care Directive. This document dictates who will be in charge of making decisions about your medical care if you cannot make them yourself.
If one party to a relationship passes away and has not made provision for their partner in their Will, or they did not have a Will at all, then their partner can apply to benefit from the estate as a spouse or domestic partner. If the relationship was not registered and the parties were not married, then the partner will need to incur the additional cost of applying to the Court for a declaration that the relationship was a domestic partnership in order to receive any benefit from the estate. Registering a relationship during your lifetime would save your partner the cost of making that application if the worst were to happen.
This being said, if you want to ensure that your partner will benefit from your estate, you should speak to your lawyer about drawing a Will. You should also ensure that you keep your Will updated to suit your circumstances as they change.
Superannuation often forms a large portion of an estate and does not always pass in accordance with your Will. To ensure that the superannuation passes to the person you want to benefit, you should always ensure that your binding nominations are up to date.
Effects on Wills
Getting married or registering a relationship will revoke an existing Will, unless the Will expressly states that it is made in contemplation of the marriage or registration.
Getting divorced or revoking the registration will not revoke a Will, but any clause in which your former partner is named as beneficiary or appointed as an Executor or Trustee will no longer be valid. The Will is essentially treated as if your former partner has passed away, and the remainder of the Will continues to apply. Often the remainder of the Will is not sufficient, so you may need to make a new Will anyway.
Family Law implications
Registering a relationship could have family law property implications. Under the Family Law Act, parties who are married or in a de facto relationship will be entitled to seek a property settlement against their former partner after separation. A Court can make property orders in respect of a de facto relationship if:
- The parties have been living together on a genuine domestic basis for a minimum of two years;
- There is a child of the relationship;
- The applicant made substantial contributions (financial or non-financial) to the property pool and a failure to make orders would result in a serious injustice to the applicant; or
- That the relationship is or was registered under Federal or State law.
If you choose to register your relationship, then the risk is that your partner will be eligible to make a claim for property settlement or maintenance against you, even if you have only been together for a very short time and they would not otherwise be able to make a claim.
What a party could claim will depend on the circumstances of the matter. If the relationship was very short, this would have an effect on what each party is entitled to.