The Importance of Making a Will after Separation

Your Will should reflect any significant changes in your relationship status, whether you are getting married, having children, or breaking up.

If you made a Will whilst you were single but have now married, this automatically cancels your Will rendering it invalid.

Divorce affects your Will differently in each state. In Victoria, pursuant to the Wills Act 1997, upon divorce, any provision in your Will that relates to your former spouse becomes invalid. On the other hand, unlike divorce, separation does not automatically cancels the provisions in your Will relating to your former spouse/partner. This means that, if you separate, your former partner may still get a share of your estate (or your whole estate if you leave no children at the date of death) unless you make a new Will.

However, if you divorce but continue to maintain an amicable relationship with your former spouse for the sake of your children, and you intend to leave your former spouse as the executor of your estate after your death, your former spouse may encounter complications proving your intentions when you are no longer around.

Rather than leaving these issues to the Supreme Court to unravel, it would save one the hassle and legal fees to simply make a new Will to ensure your intentions are clear. If you think about this carefully, taking the time to draw up a Will or revisit your old Will each time a significant event occurs is worth taking the time for, particularly if you have children or family members or friends you wish to provide for when you are no longer around.

At Nevett Ford Lawyers, we always advise clients who are starting or have finalised property proceedings, and or applied for divorce to make a Will (or a new Will) and properly arrange their estate affairs. We cannot emphasise the importance of this enough!

So, the next time you update your relationship status on Facebook and/or on other social media, think about this article and remind yourself to also update your Will! If you have done the former but not the latter, call us now on 03 9614 7111 or email Melbourne@nevettford.com.au.

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Can you make a claim for property settlement if your de facto relationship is less than 2 years?

It is possible to make a claim for a property settlement for de facto couples (including same sex couples) even if the cohabitation is for less than 2 years.  You would need to have a child of the relationship or have made “substantial contributions” to any property of the parties.  You would also need to demonstrate that if the Court won’t allow your case to be heard, you would suffer serious injustice.

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How do I know if my relationship constitutes a 'De Facto Relationship'?

A 'de facto relationship' includes same sex partners and can exist if a partner is married to someone else or is in another de facto relationship. The relevant legislation defines partners as being in a de facto relationship if they are not married or related to each other, and having regard to all the circumstances of their relationship, living together on a genuine domestic basis.

Those circumstances may include:

·        the length of the relationship

·        the nature and extent of their common residence

·        whether a sexual relationship exists

·        degree of financial dependence and support

·        ownership, use and acquisition of property

·        degree of mutual commitment to a shared life

·        the care and support of children

·        reputation and public aspects of the relationship

·        whether the relationship was registered in a State or Territory.

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