Three year time requirement - State law matters

Summary of areas:

  • Inadequate provision in a will
  • Where there is no will
  • Death caused by a negligent act
  • State Superannuation
  • Death caused by crime
  • Workplace death
  • Stamp Duties
  • Accessing reproductive technologies

All the situations where a de facto relationship must have existed for three years to be recognised, unless there is a child of the relationship (when there is no time requirement), come under South Australian law. In these situations, the relationship must come under the definition of a 'domestic partnership'.

Note that companion relationships are also included in the definition of a domestic partnership and are thus recognised in these areas of South Australian law, see Companion relationships and property disputes.

What is a domestic partnership?

The definition of a domestic partnership for most areas of South Australian law is set out in the Family Relationships Act 1975 (SA). Under this Act, a 'domestic partnership' is two adults (whether or not related by family and irrespective of their gender) in a 'close personal relationship' (that is, living together as a couple on a genuine domestic basis) where the partners have been together for at least three years, or during four years for periods totalling three years, or have had a child together.

A domestic partnership includes opposite sex couples, same-sex couples, and companion relationships. Companion relationships can include relationships between people who are related to each other as well as where people are not related and not in a sexual relationship, but are 'living together as a couple on a genuine domestic basis'.

Domestic partnerships do not include marriage relationships or situations where care is provided by one person to the other for fee or reward.

If the relationship is less than 3 years in duration and there are no children

If the relationship was for less than three years and there is no child of the relationship, either of the former partners may seek a declaration from the Court that they were domestic partners, on the basis that they were living together in a close personal relationship and that the interests of justice require that a declaration be made. This application is made under the Family Relationships Act 1975 (SA), which sets out what the court must consider when making its decision. An application for a declaration must be supported by an affidavit indicating the names and addresses of anyone whose interests may be affected by the declaration [Magistrates Court (Civil) Rules 37(6)] and served on all these persons [r 37(7)].

What steps have to be taken to have the relationship recognised?

For most legal purposes, partners do not have to take any formal step to have the relationship recognised. Once the criteria are met, the relationship is recognised automatically. If there is doubt, the court can be asked to make a declaration as to whether two people were, on a given date, domestic partners.

For some legal purposes, outlined below, a formal declaration from a court is required before the relationship can be recognised as a domestic partnership.

Inadequate provision in a will

A partner, as defined under the Family Relationships Act 1975 (SA), who has not been adequately provided for under the deceased partner's will may apply under the Inheritance (Family Provision) Act 1972 (SA), for a sum of money from the deceased's estate [s 6(a)].

Before this claim can be made, the partner must first have obtained a declaration from the court that he or she was a 'domestic partner' on the date of death.

Where there is no will

If the deceased did not leave a will, a surviving partner, as defined under the Family Relationships Act 1975 (SA), is entitled, under the intestacy provisions of the Administration and Probate Act 1919(SA) [s 72h(1)], to share in the distribution of the estate.

Before this claim can be made, the partner must first have obtained a declaration from the court that he or she was a 'domestic partner' on the date of death.

Death caused by a negligent act

If the death was caused by the negligent act of a third party (for example, in a road accident), the surviving partner, as defined under the Family Relationships Act 1975 (SA), may claim damages from the third party. These damages will cover both economic loss (that is, loss of future financial support) and solatium (emotional loss).

Before this claim can be made, the partner must first have obtained a declaration from the court that he or she was a 'domestic partner' on the date of death.

Superannuation

If the deceased was a contributor to a State superannuation scheme, the surviving partner, as defined under the Family Relationships Act 1975 (SA), may apply to the administrators of the scheme for a spouse's pension.

Death caused by crime

Under the Victims of Crime Act 2001 (SA) a partner, as defined under the Family Relationships Act 1975 (SA), is able to claim compensation for the death of their partner resulting from a homicide. If a partner died as the result of a criminal injury the surviving partner has a right to be represented as a dependant of the deceased in order to collect compensation.

Workplace death

If an employee is killed at work and their partner, as defined under section 4(1) of the the Return to Work Act 2014 (SA), or his or her children were wholly or partially dependent on the employee, then the partner and children can make a claim under the Reutrn to Work Act 2014 [ss 59,61].

The definition of a domestic partner under the Return to Work Act 2014 (SA) is the same as that under the Family Relationships Act 1975 (SA), except for the following additional provision: if the person has been living with the worker for a substantial part of the preceding three or four years and Return to Work considers it is fair and reasonable that the person be regarded as the domestic partner of the worker for the purposes of the Act, then the person can make a claim as a domestic partner.

Stamp Duties

Stamp duty is not payable on an agreement made under the Family Law Act 1975 (Cth), or any transfer of property or motor vehicle between former de facto partners pursuant to a Family Law agreement or Family Court order [see Stamp Duties Act 1923 (SA) s71CA].

Stamp duty is also not payable in the following four circumstances. (Note that there are separate provisions for married or formerly married partners.)

1.Where partners are living together, and have been living together continuously for at least three years or three out of the last four years or have a child together, there is no stamp duty payable on:

transfer of an interest in their shared principal place of residence (for example, one partner may own the house they live in, and they may agree that the other partner also be registered on the title as an owner), or

the transfer of registration of a motor vehicle between them.

[Stamp Duties Act 1923 s71CB]

2.There is also no stamp duty payable on the breakdown of the relationship for the transfer between former partners, who have been living together continuously for at least three years or three out of the last four years or have a child together for the transfer between them of:

their principal place of residence of which both or either of them is the owner, or

the registration of a motor vehicle

[Stamp Duties Act 1923 s71CB].

In order to have the stamp duty waived on the transfer of the shared home or motor vehicle in the above two situations, a special statutory declaration from Revenue SA (Stat Dec 71CB) must be completed. Note that, if the requirement of being together for three years or three out of the last four years or having a child together is not met, it is possible to seek a declaration from the court that the partners are 'domestic partners' (and therefore that the exemption from stamp duty is available) on the basis that the interests of justice require such a declaration to be made.

3.If you have a certified domestic partnership agreement AND have been together for three years, then stamp duty is not payable on any transaction giving effect to the agreement. A special statutory declaration from Revenue SA (Stat Dec 71CBA) must be completed.

4.Similarly, if you have a property adjustment order, which is only possible if you have been together for three years (see Property Disputes), then stamp duty is not payable on any transaction giving effect to the order. A special statutory declaration from Revenue SA (Stat Dec 71CBA) must be completed.

Accessing reproductive technologies

In order to be eligible for artificial fertilization procedures, de facto partners must have been living together continuously for three years, or, during the immediately preceding four years, for periods aggregating at least three years. There is no time requirement for married couples. [s 10A Family Relationships Act 1975]

While all infertile women can obtain fertility treatment, fertile same-sex partners cannot access reproductive technology in South Australia. In other words, lesbian women who are not medically infertile cannot access treatment for artificial insemination through a licensed clinic. [s 9(1)(c)(i) Assisted Reproductive Treatment Act 1988]

Three year time requirement - State law matters  :  Last Revised: Fri Sep 23rd 2016
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