Following recent amendments to the Marriage Act, same-sex couples across Australia are now permitted to marry under Australian law. But as with any legal marriage, it is important to look at your estate planning before (or shortly after) you walk down the aisle.
Marriage – spot the difference?
These days, married and unmarried couples are virtually the same in the eyes of the law.
From division of property on separation to estate entitlements on death, if you are living together as a couple on a genuine domestic basis, you have mostly the same rights as married couples.
However, the legal requirement for a de facto relationship is generally that you have lived together for 2 years of more, or have children together. So if your current relationship doesn’t satisfy these criteria, then getting married will likely affect your legal rights and responsibilities.
Marriage revokes prior wills
Marriage generally revokes a Will that is made before the big day. This is one major difference between the legal rights of married and de facto couples. So if you have been married recently, you should urgently update your Will as your existing Will may no longer be valid.
If you don’t already have a will, however, there is no need to wait. You can make a will “in contemplation of marriage”, to get around the automatic revocation.
Superannuation – don’t pay unnecessary tax!
Superannuation is not necessarily governed by your will. However, in most cases, you can still decide who will receive your super (and life insurance) after your death. Proper planning can make the process much simpler and help your loved ones to avoid unnecessary tax.
Take control with powers of attorney
Who will manage your affairs, if you are no longer able? Making a power of attorney lets you decide. It also lets you have some control over the decisions that are made. Getting married is a good time to make sure you have the right people in these roles.
Binding financial arrangements can save headaches later
Marriage is a happy occasion. Unfortunately, about 40% of marriages in Australia end in divorce. To help avoid bitter disputes, it can be worthwhile to make a “binding financial agreement” early on in the relationship, to decide how the assets will be divided on separation. At least three to six months before marriage is ideal.
Already married? Never fear, a BFA can be made at any time.
Our specialised lawyers can advise and assist you with all aspects of your estate planning and family law needs. If you are preparing to marry, now is time to get practical advice on how to structure and plan your estate. Please do not hesitate to contact us .