Three year time requirement - State law matters

Recognition of unregistered de facto relaitonships (opposite sex and same sex)

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
  • Entering into a surrogacy agreement

All the situations where an unregistered 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 meet the alternative definition of a 'domestic partnership' under the Family Relationships Act 1975 (SA), see below.

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) [s 11A]. Under this Act, a 'domestic partnership' is two adults (whether or not related by family and irrespective of their sex or gender identity) in either:

  • a 'registered relationship' or
  • 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 does not include marriage or situations where care is provided by one person to the other for fee or reward.

If the unregistered de facto 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 section 11B of 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 an unregistered de facto relationship recognised?

For most legal purposes, partners do not have to take any formal step to have the relationship recognised. Once criteria are met, the relationship is recognised automatically. See No time requirement for recognition of an unregistered de facto relationship. 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 an unregistered de facto relationship can be recognised as a domestic partnership.

Inadequate provision in a will

A spouse or domestic partner 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)]. The definition of a domestic partner under this Act includes 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.

Before this claim can be made, a partner to an unregistered de facto relationship must first obtain a declaration from the Court that, under the Family Relationships Act 1975 (SA), he or she was a 'domestic partner' on the date of death, or at some earlier date.

Where there is no will

If the deceased did not leave a will, a spouse or domestic partner 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. The definition of a domestic partner under this Act includes 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.

Before this claim can be made, a partner to an unregistered de facto relationship must first obtain a declaration from the Court that, under the Family Relationships Act 1975 (SA), 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, a partner to an unregistered de facto relationship must first obtain a declaration from the Court that he or she was a 'domestic partner' on the date of death [see Civil Lilability Act 1936 (SA)].

State superannuation

If the deceased was a contributor to a State superannuation scheme, the putative spouse (meeting a similar definition to that under the Family Relationships Act 1975 (SA) i.e. registered relationship, three year time requirement or child born of the relationship) may apply to the administrators of the scheme for the spouse's pension [see, for example, Southern State Superannuation Act 2009 (SA) s 7].

Before this claim can be made, a partner to an unregistered de facto relationship may first need to obtain a declaration from the Court that he or she was a 'putative spouse' at the relevant time.

Death caused by crime

Under the Victims of Crime Act 2001 (SA) a domestic 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.

Although it is necessary for an unregistered de facto relationship to meet the alternative definition under the Family Relationships Act 1975 (SA), namely the three year time or birth of a child requirements, it may not be necessary to obtain a declaration under that Act [see Victims of Crime Act 2001 (SA) s 4].

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 Return to Work Act 2014 (SA) [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.

Entering into a surrogacy agreement

In order to enter into a surrogacy agreement, partners to an unregistered de facto relationship must have been living in a marriage-like relationship (irrespective of their sex or gender identity) for three years, or for periods aggregating at least three years in the previous four years.

There is no time requirement for married couples or couples in a registered relationship [s 10HA Family Relationships Act 1975 (SA)].

As of 21 March 2017, access to reproductive technologies such as artificial insemination is no longer restricted on the basis of infertility. This restriction had acted to prohibit fertile same-sex couples from accessing reproductive technologies. The focus on infertility has been replaced with the requirement that it would be “unlikely that,in theperson’scircumstances, the person will become pregnant other than by assisted reproductivetreatment”  [ see Assisted Reproductive Treatment Act 1988 (SA) s 9(1)(c)(i)].  

Three year time requirement - State law matters  :  Last Revised: Tue Aug 15th 2017
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