Effect on Unmarried Couples

One group of people who will be affected are those who were living with td at the date of death as their partner/de facto spouse, including any same-sex relationships.  Under the changes, that person will need to prove that they are a dp.

Spouse

A person who was married to td is described as a “spouse “and a spouse is entitled to claim, regardless of ether or not they were living with td at the dod.

Registered “domestic partner”?

A registered domestic partner is a dp whose relationship with td has been registered under the Relationship Act 2008 (Vic).  They stand in a very similar positon to a spouse when it comes to being entitled to claim: so long as the relationship is registered they will be able to claim.

Unregistered “domestic partner”?

An udp is simply someone who is living with td without the relationship being registered.  It includes a same-sex partner.

An udp will not be able to claim unless you can prove that you were in a dpp i.e. that you had lived with td as one of a couple on a genuine domestic basis for two years immediately before their death.

Nick????? or is the parent of the child of the person: so no time limited if td is a parent of the partner’s child???

How do you establish that you are an udp

When determining whether a person was in an unregistered domestic partnership, all the circumstances of their relationship are to be taken into account, including the factors in s35(2) of the Relationship Act 2008 (Vic).  These factors include things such as:

• the degree of mutual commitment to a shared life;
• the duration of the relationship; and
• the nature and extent of common residence.

Each of these factors can easily present a problem for a person who is an udp (see the next 3 headings) and under the new proposed laws they have a burden that did not exist before.

It will turn out that may claimants who are udpartners will not be able to prove a continuous two year relationship, or may have difficulty in establishing things such as there being a common residence and mutual commitment.   Let us look at some examples.

Establishing the nature and extent of common residence

Problems may arise for:

• Those who live in their own home with their partner, and also both of them share some other home such as their partners home, or some other place such as a rented 2nd home;
• Those who are temporarily forced to work away from home, on a regular basis where they have a residence provided for work purposes eg a flat near work;
• Those who do not share bank accounts with their partner;
• Those who do not share expenses or incur joint living expenses eg if they each contribute 50/50 to the bills as they come in;
• Those where all of the household accounts are in one name.

The degree of mutual commitment to a shared life

Problems may arise for:

Those in discreet or secret relationships, where their living together is not common knowledge.  This may make it difficult for the survivor to prove that they were committed to each other, as they were rarely seen as a couple.

This can be a particular problem for older person who have both been married and their spouses have died: frequently there is a lot of family pressure for them not to forge new relationships many such people commonly keep their relationship a secret, and may even deny it to their families.

Gay and lesbian persons may also have difficulty in presenting themselves as a couple, even though they may have been involved in a life-long relationship, comparable to most marriages.

The duration of the relationship

The new rules require that those living in an udpp must have lived together on a genuine domestic basis for two years immediately before the person’s death, in order to claim.

Problems can arise if:

Before the death of the deceased but the relationship had been re-established at the date of death.  Additional problems arise if there had been no reconciliation before death.

There was a break in the relationship: eg after living together for 30 years, there was a break in the relationship in the 2 years before the death of td;

One of the parties has had to re-locate from their mutual residence, and live in employer-provided housing at a remote location, in order to go to work;

One party is in hospital or jail in the 2 years eg the deceased developed dementia and was in a nursing home for the last 18 months of their life.

How are these Questions Resolved?

Ultimately a decision may need to be made by a court, but most claims settle at mediation.

However, in order to bring the issue out for a decision, the claimant will usually need to commence a claim in the court, and be prepared to take the risk of losing in Court if the matter cannot be settled beforehand.

In practice most claims settle at mediation.

If the claim is unsuccessful because the claimant is unable to establish that they lived in an udpp, not only would the claimant be required to pay their own legal costs, it is likely that the court  may order them to pay the legal costs of the estate as well.

This is unfortunate as many people who are entitled to claim, may decide not to proceed, rather than take the risk of failure.

The best thing for someone to do is to contact a solicitor who is specialised in the estate litigation area, for an opinion, and to try to engage their services on a no win no fee basis.

Dictation from Terry:

Victoria recently changed the category of persons who are able to contest a Will i.e. bring a claim that a deceased person did not make proper provision for them in their last Will (or as a result of any intestacy), and asked the Court for an Award of money or property in compensation.

From 1 January 2015, only people who fit within a particular category of claimant may be able to make a claim.

One category is a “spouse” or “domestic partner”, as at the date of death.

One group of people who were affected by the changes are those who were living with the deceased at the date of death of their partner/defacto spouse, including any same sex relationships.  Under the changes that person will need to prove that they are a domestic partner.

Spouse

A person who is married to the deceased is described as a “spouse” and a spouse is entitled to claim, regardless of whether or not they were living with the deceased at the date of death.  As Australia does not recognise same-sex marriages, a same-sex person must be a “domestic partner” in order to make a claim.

Under the Act, some same-sex relationships are ? recognised.

Unregistered domestic partner

Many partners, of whatever sex, do not enter into registered relationships.

An unregistered domestic partner is simply someone who is living with the deceased without the relationship being registered.  It includes the same-sex partner.

These relationships were commonly called “defacto relationships” in the past, referring to unmarried persons of the opposite sex.

An unregistered domestic partner will not be able to claim unless they can prove that they were in a domestic partnership i.e. they must establish that they had lived with the deceased as one of a couple on a genuine domestic basis for two years immediately before the death of the deceased, or did so for ? and were a parent of the deceased’s child who is under the age of 18.

The proposed laws that they have the burden of establishing the relationship, a burden that did not exist before.

Those who live in their one home with their partner and also some of them share some other home such as the other partner’s home or some other place such as a rented second home.  Additional problems can arise if each partner still owns their own home and the parties live between the two.

A partner who is left at home for an extended period because the deceased partner spent extended periods in hospital or a nursing home, prior to their death.

Backup Claim

A person who is not qualified as an unregistered domestic partner may be able to claim under category (k) of “the eligible person” set out in the legislation, by establishing that at the date of death, they were a member of a household of which the deceased was a member.

Most claimants who had been living with the deceased should be able to fit within this category, even if they are not a domestic partner, but they must pass the following tests:

(a)   Establish that they were wholly or partly dependent upon the deceased at the date of death;

(b)  The amount that they can claim must be proportionate to the degree of dependency.

Before commencing a claim, a person should obtain an assessment from a specialised lawyer working in the Wills and Estates litigation field, as to whether they are an “eligible person” and the amount that they are likely to get as an Award.

Anyone who makes a claim without full consideration of this issue may find that they need to withdraw their claim and pay their own legal costs as well as the legal costs of the estate.

How no win/no fee arrangements may help you

It may be advantageous to engage a lawyer who offers a no win/no fee arrangement: under this arrangement you will then only need to pay the legal costs from any settlement monies received as a result of the action, so that if the action is unsuccessful, you should not be up for your own lawyer’s costs.

If you are offered a no win/no fee arrangement, you can be reasonably confident the solicitor obviously anticipates a good outcome for you.

You will also obtain the advantage of not having to pay your legal costs until a successful outcome is obtained, and then the amount payable to you can only be payable if the Settlement Monies are sufficient to cover those fees.

Shop around before you agree to any particular no win/no fee plan, and avoid any plan where you are asked to contribute to barrister’s fees and court fees as you go, from your own pocket.

Try to find a plan that involves you in no payment whatsoever until the case is over so that you can pay the fees from your settlement monies.

CWPL can send you a comparison guide on no win/no fee plans, to help you decide which plan is best.