Australia: Deceased estates and domestic partnerships

With an increase in life expectancy and the decline of lifelong monogamous relationships, modern families are more diverse than ever. In this article, we look at the term 'domestic partner' and explain what this means in a legal sense, and in particular, the difficulties which can arise for these couples when it comes to estate planning.

What is a domestic partner?

There is a common misconception that the term 'domestic partner' only applies to those in a romantic or sexual relationship. However, under the Family Relationships Act 1975 (SA), a person is considered to be the domestic partner of another if, on that date, they are either:

• in a registered relationship under the Relationships Register Act 2016 (SA); or
• are living with the other person on a genuine domestic basis continuously for either:
• • three years prior to that date; or
• a period aggregating not less than three years over a four year period.

Should the criteria above be met, it is possible for one party to apply for an order from a South Australian Court (the Court) declaring them to be in a domestic partnership with the other person.

What does the Court consider in determining whether a domestic partnership existed?

If the Court is satisfied that two people were living together on a genuine domestic basis for the required time frame, the Court will declare that the persons were domestic partners.

In the absence of this criteria being met, if two people are living together on a genuine domestic basis and the interests of justice require the declaration to be made, the Court can declare the persons to be domestic partners.

Defining 'the interest of justice'

There are a number of situations which could make a relationship worthy of a declaration in the interests of justice and one such example is where one party is required to give up employment in order to provide a significant degree of care for the other.

The Court will take into account all of the circumstances of the relationship between the two people for whom the declaration is sought, including but not limited to, any of the following matters:

Why does the relationship status matter?

If a person dies without a Will, they are considered to have died intestate. This means that their estate is distributed in accordance with the laws of intestacy as set out in the Administration and Probate Act 1919 (SA).

Under the laws of intestacy, if the deceased is survived by a spouse or domestic partner and no children, the spouse or domestic partner is entitled to the whole of the estate. Where the deceased is survived by a spouse or domestic partner and by children, the spouse or domestic partner is entitled to the first $100,000 and one half of the balance of the estate. The children of the deceased are entitled to the other half of the balance of the estate in equal shares. Further information about what happens if you die without a Will can be found here.

A domestic partner is also a person who is eligible to make a claim against a deceased estate under the Inheritance (Family Provision) Act 1972 (SA).

Put simply, if you are in a domestic partnership which has not been legally registered and your partner dies without a Will, there will be additional complications you need to meet before you can inherit from their estate. Similarly, if your partner has left a Will but provision has not been made for you in it, you may not be able to legally challenge the Will unless you are declared a domestic partner of the deceased.

Domestic partnerships are not always romantic or sexual

A South Australian District Court case, Taddeo v Taddeo [2010] SADC 61, found a domestic partnership to exist between a mother and daughter who lived together for 24 years after considering contributions made to the purchase of the house and general household contributions.

As this case shows, where the law is concerned, defining a domestic partnership relationship is a grey area when compared to those who are legally married.

A domestic partnership only exists because of the factual circumstances surrounding the relationship of two people, unlike marriage, where a legal status is immediately created at the time of registration. This means that the Court has to decide each case on its particular facts and circumstances.

Get your affairs in order

If you think you may be living in a domestic partnership without a Will, then you should seek legal advice to create an estate plan and the required documents including a Will .

If you have been living in a domestic partnership and your partner dies without making a Will, you should seek legal advice as soon as possible to determine if you are entitled to a distribution from the person's estate.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.