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Registered relationships

The Relationships Register Act 2016 (SA), which came into operation on 1 August 2017, makes it possible for a couple (whether the couple is opposite sex or same sex, and irrespective of their sex or gender identity) to register their relationship with the office of Births Deaths and Marriages in South Australia.

The Act sets out who may apply to register a relationship, what needs to be included with the application, when the registration may take effect, as well as the procedure for revoking the registration of a relationship.

Who may apply to register a relationship?

Any two people over the age of 18 who are in a relationship as a couple, and irrespective of their sex or gender diversity, may apply to register their relationship, provided that:

  • At least one person resides in South Australia
  • Neither of them is married under the Marriage Act 1961 (Cth)
  • Neither of them is already in a registered relationship (including a registered relationship under a corresponding law declared in the Relationships Register Regulations 2017 (SA))
  • Neither of them is in a relationship as a couple with anyone else
  • They are not related by family (i.e. grandparent, parent, brother or sister)

The application must be accompanied by the prescribed fee, as well as a statutory declaration by each person in the relationship.

See sections 5-6 of the Relationships Register Act 2016 (SA).

For more information about making an application, see the sa.gov.au website

When does registration take effect?

The Registrar of Births, Deaths and Marriages may register the relationship 28 days after the application is made. The period of 28 days before registration provides for a “cooling off period”. During this time either of the applicants may withdraw the application by giving the Registrar a withdrawal notice using the approved form.

The Registrar must register the relationship as soon as practicable after the end of the “cooling off period” provided that the Registrar is satisfied that the relationship may be registered (in other words, it meets the eligibility requirements of section 5 of the Act) and neither applicant has withdrawn the application.

Registration takes effect upon entry by the Registrar into the Register of Births, Deaths and Marriages.

See sections 7, 8 and 9 of the Relationships Register Act 2016 (SA).

What if our relationship is registered in another State or Territory of Australia or another country?

The Relationships Register Regulations 2017 (SA) [reg 7] provide a list of laws of other jurisdictions declared to be corresponding laws. A law of another jurisdiction may be declared to be a corresponding law if, under that law, the relationship must be:

  • between two people over the age of 18
  • entered into with the consent of both people
  • between people who are not related by family
  • between people who are not already married under the Marriage Act 1961 (Cth)
  • between people who are not already in a relationship that is registered or formally recognised under that law

If you are in a registered relationship under a corresponding law, you will be taken to be in a registered relationship under South Australian law [s 27] and may apply to the Registrar for a certificate to that effect.

This application must be accompanied by evidence of the identity and age of each of the applicants, and evidence that the relationship between them is a corresponding law registered relationship, as well as the prescribed fee.

See sections 26 and 27 of the Relationships Register Act 2016 (SA).

Can we hold a ceremony upon the registration of our relationship?

If you wish you can hold a ceremony, but it is not a requirement. The Registry of Births, Deaths and Marriages will hold ceremonies at Chesser House, performed by registry staff. You can nominate preferred date/s for a ceremony in your application for registration. Alternatively, you can arrange to have a private ceremony.

What if we choose not to register our relationship? Is our relationship still legally recognised?

If you choose not to register your relationship, your relationship may still be recognised for some purposes, such as:

  • Applying for Legal Aid
  • Social Security Payments and Benefits
  • Tax
  • Children
  • Child Support
  • Intervention Orders
  • Agreements about property
  • Stamp Duty
  • Criminal Code

For other purposes, however, your relationship must generally have existed for a period of one, two or three years, to be recognised, and a declaration of your relationship may be necessary.

Below are some of the most common time requirements for recognition and the purposes to which they apply.

One year for recognition: migration (Migration Act)

Two years for recognition: property disputes (Family Law Act)

Three years for recognition: State law matters, including

  • Inadequate provision in a will
  • Where there is no will
  • Death caused by a negligent act
  • Superannuation under a State scheme
  • Death caused by crime
  • Workplace death
  • Entering into a surrogacy agreement

NOTE: if there is a child of the relationship, the relevant time period may not be required and a relationship of any length will be recognised.

Please see De facto relationships for more information about these time requirements.

Does registering our relationship remove the time requirements?

Yes, because the definition of “domestic partner” in the Family Relationships Act 1975 (SA), as well as other relevant South Australian and Commonwealth legislation, has been amended to include a person who is in a registered relationship with the other person under the Relationships Register Act 2016 (SA), or a corresponding law registered relationship.

In the absence of registration, the duration of the relationship or birth of a child requirements continue to apply.

See s 11A of the Family Relationships Act 1975 (SA).

Does registering our relationship automatically revoke a previous will?

Yes, the commencement of a registered relationship under the Relationships Register Act 2016 (SA) automatically revokes a will unless the will was made in contemplation of the registered relationship and this was stated in the will. In contemplation of the registered relationship means that the testator was planning to commence the registered relationship at the time of making the will, and the will is made with this in mind.

The end of a registered relationship, under the Relationships Register Act 2016 (SA), revokes any bequest to the former partner or appointment of the former partner as executor unless it is clear from the will that the end of the registered relationship is to have no effect.

It is wise to seek legal advice about a will after commencing a registered relationship.

See sections 20 and 20A of the Wills Act 1936 (SA).

If my registered relationship partner does not provide for me in their will, do I have any recourse upon their death?

Yes, because the definition of “domestic partner” in the Inheritance (Family Provision) Act 1972 (SA) has been amended to include a person who was in a registered relationship with the deceased under the Relationships Register Act (SA), or a corresponding law registered relationship, at the time of the deceased’s death, or at some earlier date.

A domestic partner is a person who can apply for re-allocation of the deceased’s estate.

In the absence of registration, a domestic partner must first be declared so under the Family Relationships Act 1975 (SA), where the duration of the relationship requirement or birth of a child generally applies.

See sections 4 and 6 of the Inheritance (Family Provision) Act 1972 (SA).

If either or both partners do not have a will, does the registration of their relationship offer any protection to them in the event of either of their death?

Yes, because the definition of “domestic partner” in the Administration and Probate Act 1919 (SA) has been amended to include a person who is in a registered relationship with the deceased under the Relationships Register Act (SA), or a corresponding law registered relationship, at the time of the deceased’s death.

A domestic partner is provided for in the same way as a spouse in the distribution of the estate.

See sections 4 and 72G Administration and Probate Act 1919 (SA).

In the absence of registration, a domestic partner must first be declared so under the Family Relationships Act 1975 (SA), where the duration of the relationship requirement or birth of a child generally applies.

If we separate and have a dispute about dividing our property, can we apply to the Family Law Courts to resolve our dispute?

The Family Law Act 1975 (Cth) states that if the relationship has been registered in a State or Territory of Australia under laws for the registration of relationships, then an application for property settlement can be made. This must generally be made within 2 years of the end of the relationship.

Once your relationship is registered you no longer need to meet the two year time or birth of a child requirement.

See section 90SB of the Family Law Act 1975 (Cth).

Is a registered relationship recognised faster for immigration purposes?

The one year time requirement, that otherwise applies to partner visas, does not apply if the de facto relationship is registered in a State or Territory of Australia under laws for the registration of relationships. There may also be other compassionate or compelling reasons (such as the birth of a child) for this time requirement to be waived. However, in any case, the relationship must also meet the general definition of a de facto relationship under section 5CB of the Migration Act 1958 (Cth), which includes that the partners have a mutual commitment to a shared life to the exclusion of all others, that their relationship is genuine and continuing, that they live together, or at least do not live separately and apart on a permanent basis, and that they are not related by family.

How can I end my registered relationship?

Either or both of the persons in a registered relationship may apply to revoke the registration of the relationship. If the application is made by only one person, that person should accompany the application with proof of service of the notice on the other person. A “cooling off period” of 90 days applies. During this time, an applicant may withdraw the application for revocation. The Registrar must revoke the registration as soon as practicable after the end of the cooling off period. A registered relationship will be taken to end in the following circumstances:

  • On the death of a person in the relationship
  • On the marriage of a person in the relationship
  • When the Registrar makes an entry into the Register following an application for the revocation of the registration

See sections 10-13 of the Relationships Register Act 2016 (SA).

Registered relationships  :  Last Revised: Thu Nov 9th 2017
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.