This section examines the law relating to same-sex and de facto relationships and families in Victoria in regards to having the same name, having children, rights and responsibilities, reproductive assistance, inheritance, registration of birth and financial matters.

Contributor

Rebecca Dahl

Partner, Nicholes Family Lawyers

Other financial matters for de facto and same-sex partners

Last updated

1 July 2020

There are different laws covering compensation or benefits arising from a work injury, being a victim of crime, or transport accidents. Domestic partners or children within the domestic relationship are eligible (see Chapter 10.2: Transport accident injuries; Chapter 10.3: Work injuries; and Chapter 10.6: Assistance for victims of crime).

Claims on a deceased partner’s estate

The Administration and Probate Act 1958 (Vic) (‘A&P Act’) is one of the Acts amended by the SLAR Act (see ‘Domestic relationships’, above), and now includes domestic partners. The A&P Act now applies where a person dies intestate and is survived by a domestic partner or by both a domestic partner and a spouse. Section 51 provides for the partner’s entitlement – ‘partner’ is defined by section 3 as a spouse or domestic partner – and section 51A provides a sliding scale of entitlements where the intestate leaves a domestic partner and a spouse.

If the deceased leaves a will that does not adequately provide the proper maintenance and support of ‘a person for whom the deceased had a responsibility to maintain and support’, an application can be made to the Supreme Court of Victoria for a greater share of the estate.

The validity of a will can also be challenged on grounds of unfairness due to the prospective beneficiary being estranged from the testator at the time the will was created. For example, in the case of Kiernan v Cranston & Purcell as Executors of Will of Cranston (No 2) [2019] WASC 410, the testator made no provision in her will for her adult children. At the time the will was made, the testator was estranged from both of her children. In the circumstances of the case, the court, using its discretion, amended the will to make provision for the testator’s two children. 

This means of contesting wills is relevant to the LGBTIQA+ community as it may often be the case that potential beneficiaries are excluded from a will due to their estrangement from the testator because of their sexual or gender identity.

It used to be that only the widow, widower or children of the deceased could make such an application. Since 20 July 1998, anyone who falls within the description of ‘a person for whom the deceased had a responsibility to maintain and support’ can apply. Where the person died before that date, the previous limitations apply. 

For further information, see Chapter 9.3: Wills.

Centrelink payments

A pension or benefit may be refused or brought to an end on the basis that a parent is living in a ‘marriage-like relationship’. In deciding whether such a relationship exists, all the circumstances of the relationship must be considered, particularly its financial and social aspects, the nature of the household, any sexual relationship between the people, and the nature of their commitment to each other.

As a result of the Commonwealth reforms discussed above, since 1 July 2009 the Social Security Act 1991 (Cth) treats same-sex couples in the same way as heterosexual de facto couples and married couples. A person living in a same-sex relationship who is receiving, or applying to receive, Centrelink payments must advise Centrelink of their same-sex de facto relationship.

A person who disagrees with a Centrelink decision may apply for that decision to be reviewed by writing to Centrelink. (See the ‘Review of a decision form (SS351)’ on the Services Australia website – www.servicesaustralia.gov.au/individuals/forms/ss351.)

If the original decision is upheld, the person may request the decision to be reviewed by the Administrative Appeals Tribunal (AAT). A request for a review can be made via the AAT’s website, in person, or by telephone (for the AAT’s contact details, see ‘Contacts’ at the end of this chapter).

For more information, see Chapter 12.2: Appealing government and administrative decisions.

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