When parties marry, they form a legal relationship with each other; such legal relationship can only be severed by the process of divorce. Divorce is the legally recognised ending of a marriage. Despite many separated spouses going on to live independently and apart, when parties to a marriage separate without divorce the legal relationship of marriage remains.
Marriage can also have a large influence on the administration of a deceased estate when the deceased died without leaving a valid will.
What is a Will?
A will is a legal document that operates on your death, by which the will-maker expresses their wishes regarding how their estate is to be distributed at death.
Regardless of wealth, a will is an important component of estate and financial planning to ensure a smooth legal transition of your assets to your intended recipients. If you do not have a will, are unsure whether your will meets your needs, or wish to ensure you have a legally valid will, it is important you obtain legal advice.
Notwithstanding the importance of having a valid will, an increasing number of deceased estates are being administered in the absence of a will, because the deceased did not make a valid will during their lifetime.
The absence of a valid will
When a person dies without a valid will, it is presumed they died ‘intestate’. The consequent of dying intestate means the deceased’s estate will be administered in accordance with the set-formula of intestacy, pursuant to Chapter 4 of the Succession Act 2006.
Chapter 4 establishes the order in which eligible relatives will inherit a deceased estate under intestacy (after payment of funeral, administration expenses, and liabilities have been paid).
Specific rules apply when the deceased died with a surviving spouse or de facto partner. In general terms and in order of priority the relatives who can inherit an intestate estate are:
- spouse and/or de facto partner(s);
- brothers and sisters;
- aunts and uncles;
The term “spouse” is defined in section 104 of the Succession Act 2006 as a person:
- who was married to the intestate immediately before the intestate’s death; or
- who was a party to a domestic partnership with the intestate immediately before the intestate’s death
Under this definition spouses who are separated, without formalising divorce, are still eligible to inherit an intestate estate. This applies even if the deceased had an eligible de facto partner as at the date of death. In the case of multiple spouses, specific rules apply to the sharing of the entitlement.
Remaining married after separation does not revoke the legal effect on spouses under the rules of intestacy.
Divorce is a relatively straightforward and inexpensive process. If the marriage has broken down irretrievably, a divorce application can be applied for by one spouse, or both jointly, provided the following criteria is met:
- Either party is an Australian Citizen or has ordinarily lived in Australia for 12 months before making the application;
- The parties have been separated for at least 12 months and if the parties have been married for less than 2 years, they have attended family counselling and obtained a counselling certificate
If considering divorce, a prospective applicant should obtain legal advice to understand their rights and obligations.
Regardless of your marriage status, it is important to consider how marriage and divorce may affect your legal and financial interests.
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