Recently one of our Directors, Kasey Fox, wrote a blog about some of the benefits of same sex marriage from a family law perspective. Now that the High Court has given the green light for the postal vote, I have set out below 5 additional benefits of same sex marriage from an estate planning perspective.
Whilst it is true that de facto couples enjoy many of the same legal rights that married couples do, they do not have all of them. Same sex couples can adopt, have children via an IVF process, benefit from superannuation, and inherit from one another. However, there are significant differences, particularly in the details, that should not be ignored.
1. It will create clear, predictable, and automatic inheritance rights
The nature of ‘family’ and the relationships within that family play a significant role in Australian law – and that may be understating it. Whether or not a particular kind of relationship exists between two people can and does have an impact on each of their rights and responsibilities.
For most people, their primary relationship is their relationship with their partner. Where such a relationship exists each member of the couple enjoys rights to the other’s estate and superannuation upon the death of their partner.
Before a partner can claim such rights, many areas of law require evidence of that relationship. A Marriage Certificate provides conclusive evidence of the existence of that relationship without having to spend further time and money proving the relationship.
For example, let’s say a heterosexual couple in the ACT meet, fall in love and get married after 2 months together. One of them dies without a Will. The other now has automatic rights to their partner’s estate – all they need to do is provide a copy of the Marriage Certificate. Let’s compare that to a same sex couple who have been together for 20 years, and one of them dies without a will. The surviving partner will first have to prove the existence and nature of their relationship before they can claim rights to the partner’s estate.
The difference between a heterosexual de facto couple and a same sex de facto couple? The heterosexual couple can choose to get married to ensure their partner is protected.
2. It will give same sex couples legal protection while they exit relationships in an ordered way
A married couple has a well-understood and formal process that they must go through to end their relationship. A divorce order cannot be made until the couple has lived separately and apart for 12 months and even then it will take a month to come into effect. This gives the couple plenty of time to get their legal affairs in order.
Once the divorce is finalised (no sooner than 13 months after separation) the couple lose a number of significant estate planning rights as against one another. For example, if one of them dies after they are divorced, the other can no longer make a claim on the superannuation, they may not be able to bring a claim against their ex’s estate, and if their ex dies then they will no longer receive a benefit under the Will or on intestacy.
A de facto relationship, on the other hand, can end at a moment’s notice. The abrupt nature of the end of the relationship does not give the couple – whose legal and financial affairs are often just as complex as any married couple – any legal cooling off period to sort out their legal and financial affairs.
The loss of estate rights is the same as a married couple but it happens immediately and without time to plan. If they do not act quickly then they may lose significant rights with no redress.
3. It will protect other members of the family
Some unique family relationships are created by the existence of a marriage between two people.
Stepchildren are one such example. A stepparent-stepchild relationship is created where a couple marry and have children from a previous relationship. By virtue of this relationship, the stepchild may have rights to bring a claim against their stepparent’s estate if that stepparent did not adequately provide for them.
This is a critical and consequential right where that stepchild was dependent on their stepparent but may only exist where the parents are married.
Families are made increasingly complex by the advent of new technology and as we have started to live longer giving everyone more time to make their lives more complex. The law has to change to keep up. Take, for example, children born as a result of IVF. Generally speaking, where a child is born as a result of IVF and the Husband and the birth mother agreed to the procedure then the Husband is conclusively presumed to be the other parent.
A de facto couple however is vulnerable to a claim that the relationship doesn’t meet the relevant criteria and therefore no parent-child relationship exists. If one of them dies, and the child wants to make a claim against their parent’s estate, the onus is then on the child to prove the nature of the relationship between their parents at the time of the IVF, to prove the parent-child relationship and to enable them to make a claim against their own parent’s estate or their parent’s superannuation.
4. It makes the law less, not more, complex
The power to make laws in respect of marriage lies with the federal government.
Each Australian jurisdiction has power to make laws in respect of relationships that are not marriage. So, each jurisdiction has its own laws in relation to de facto relationships and use different terms to describe them. Some even provide an option for same sex couples to register their relationships with state or territory governments and the effect of registration will have a different impact depending on the jurisdiction.
This means we have a multitude of different types of possible relationships, making the law more complex. The definition of your relationship and the rights it affords you can change depending on where in Australia you live.
5. It will give equally loving and committed relationships equal protection
It is simply untrue to say that same sex couples enjoy the same rights as married couples.
The simple fact is the rights of a de facto couple are different to those of a de jure married couple. Heterosexual couples can be in a de facto relationship or a de jure marriage. Same sex couples can only enter into a de facto relationship.
It is not just for two equally loving and committed couples to be treated differently on the basis that one couple is heterosexual and one is homosexual.
For estate planning advice particular to your circumstances, whether in a heterosexual relationship, homosexual relationship, or as a single person, contact our Estates Team.
Timothy Morton is an Estates Lawyer and Associate Director at Farrar Gesini Dunn, Canberra Office.
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