At present same sex marriages are not legally recognised in Australia (including same sex marriages performed overseas). If you are in a same sex de facto relationship and die intestate, your partner needs to prove a relationship existed to claim any share of your estate.
A same sex de facto couple can register their relationship with the Registry of Births Deaths and Marriages. Registration can assist in satisfying the legal need to prove the relationship existed in the event a spouse dies intestate.
Proving the de facto relationship existed can create extra expenses and distress at a time when the surviving partner is grieving. The following factors are considered when deciding whether two persons living together qualify as a genuine same sex couple:
- The nature and extent of the common home– it is necessary to prove that the parties have been sharing a common home (and bedroom).
- Length of the relationship – the longer the relationship, the more likely it will be considered a committed de facto relationship.
- Whether or not a sexual relationship exists or existed – Proof that a sexual relationship existed needs to be established.
Degree of financial dependence or interdependence – Both parties should demonstrate that trusted each other financially and intermingled their finances.
- Ownership, use and acquisition of property – Joint ownership of property is a critical factor indicating a de facto relationship (especially as joint tenants).
- Degree of mutual commitment to a shared life – Physical, emotional and financial support and caring in times of hardship and/or sickness demonstrating mutual commitment.
- Care and support of children – Demonstrating one party took the principle caring role for either their own or the other party’s children.
- Performance of household tasks – Evidence that household chores were shared jointly (i.e. cleaning, shopping for food and household goods, preparation of meals, etc.)
- Reputation and public aspects of the relationship – it is important to provide evidence that the parties presented themselves as a same sex de facto couple socially or in business situations. Exclusivity of the relationship is another factor that will be considered.
What about children adopted by same sex couples?
If someone in a same sex de facto relationship dies intestate, any children adopted by the couple are entitled to receive a portion of the estate. It also grants the child the right to challenge a will in Court to gain a higher share of the estate.
To save your loved ones from unnecessary pain, you should draft a will naming your partner as a beneficiary.