A New Reason To Register Your Caring Relationship
by Jacqui Brauman
In Victoria, people have been able to register their domestic or caring relationship with Births Deaths and Marriages since 2008.
A domestic relationship is virtually a de facto relationship, and I have always felt that there was very little point to registering a domestic relationship. De factos and same sex couples are recognised as spouses for most purposes anyway, so why register the relationship, which seemed like a second class version of marriage to me?
Similarly, a caring relationship did not have to be registered for the purposes of receiving a Centrelink Carerâ€™s pension, so why bother?
Well, with the changes to the family provision scheme in the Administration and Probate Act in Victoria earlier this year, there are some decent protections in registering a relationship which people should know about, and solicitors should advise about.
Spouses and children are virtually the only categories of people who are now able to make a claim against a Will. That is, except for people in a registered relationship with the deceased, who can meet the dependency requirement.
For de facto spouses, if the relationship is fairly new, or relatively secret, there can be difficulty proving the relationship existed at all. So the solution could be registering the relationship. A prime example might be that a older man forms a relationship with a younger woman, and his adult children donâ€™t approve, so the relationship is kept fairly quiet. They are certainly in a relationship, but for whatever reason the man never gets around to changing his Will before he dies suddenly some two years into the relationship. The young woman is not provided for in the Will, but as his spouse, she is entitled to make a claim on the estate. She needs to prove her relationship by setting out all the details for the court to accept – unless she and the deceased had registered the relationship.
More importantly, for carers to have any claim under a Will, the relationship would have to be registered. Receiving a Centrelink Carerâ€™s Pension is not enough to make you eligible under the new legislation to make a claim, and nor is all the evidence of how much you did for the deceased. If the caring relationship is not registered, there is no claim.
For example, Mary and Molly are sisters who live together. Mary has multiple sclerosis, and Molly is her carer. Maryâ€™s Will is about ten years old, and she never got around to reviewing it. When she made her last Will, she was only in the very early stages of her disease and didnâ€™t have a carer. Molly was not left anything in the Will, despite her retiring early to care for her sister. She would have no claim at all, unless they had registered their relationship.
This would also apply in a situation where a young person was in an accident and his parents were caring for him. If he had lost capacity in the accident, he couldnâ€™t redo his Will to leave anything to his parents. His parents could apply for a court ordered Will, but probably donâ€™t want the costs involved. If the young man were to die, his parents would have no claim on his estate, unless they registered their caring relationship with Births Deaths and Marriages.
If you have any questions, or want advice about your situation, please do not hesitate to contact us.