The definitions of spouse, domestic and de facto partner are not consistent across all areas of law.  It may be that in the absence of marriage, a person finds it difficult to evidence that they are:

• Eligible to claim a deceased person’s superannuation death benefit;

• Eligible to participate in the distribution of a deceased estate upon an intestacy;

• Eligible to challenge a deceased estate for further provision;

• Eligible to receive distributions;

• Eligible to receive distributions from a trust by reference to being a spouse of a named beneficiary;

• The senior next of kin in respect of arranging a funeral and burial or cremation of a deceased loved one;

• (In the absence of an appointment of a medical treatment decision maker) the person authorised to make medical treatment decisions for someone who has lost decision making capacity;

• (In the absence of an enduring power of attorney) the appropriate person to be granted an administration or guardianship order. 

It may be that in the absence of marriage there is complexity in establishing whether a person has Family Law rights in the event of an alleged relationship breakdown or even asset protection risk in respect of the bankruptcy of another person with whom they may be in a relationship.  

Marriage is also one of the ways in which a Will can be revoked (perhaps leading to an intestacy and a distribution in accordance with a formula contained in the Administration and Probate Act 1958 (Vic)).  This article explains how marriage might be defined and why it may be appropriate for you to review your estate planning documents.

In a recent decision of the Supreme Court of Victoria, Re Sambucco [2022] VSC 699, the parties were in dispute regarding whether the deceased had married such that his Will was revoked.  What follows is a summary of the decision of Justice Moore. 

• The applicants (seeking a revocation of the grant of letters of administration) submitted that the ceremony was not a legally effective marriage ceremony because the formalities prescribed by the Marriage Act 1961 (Cth) were not observed, that is to say, the deceased and his spouse (the applicants may have considered that she was not a spouse but rather a fiancé but we use the word spouse here to avoid using the real names of the individuals) believed that they could not be lawfully married in the ‘religious ceremony’ that took place before they went overseas and that later they would be married in a ‘legal’ wedding ceremony. 

• An alternative submission of the applicants was that even if the prescribed formalities for marriage were observed, the marriage was void either because it was not a valid marriage, or because the deceased and his spouse had not given their ‘real consent’ to the marriage because they were mistaken as to the nature of the ceremony performed.

• Pursuant to the Marriage Act 1961 (Cth) marriage means the union of two people to the exclusion of all others, voluntarily entered into for life. Authorised celebrants are either Ministers of Religion, certain State and Territory officers, or Marriage Celebrants.

• It was submitted by the deceased’s spouse that the overall effect of the Marriage Act 1961 (Cth) was that taking part in a ceremony with the intention of being married whereby that union is solemnised by or in the presence of an authorised celebrant, including a minister of religion, according to any form and ceremony recognised as sufficient for that purpose by the religious body or organisation of which the celebrant is a minister has the effect that the marriage is automatically a marriage according to law.

• It was also submitted by the deceased’s spouse that they intended to become married then and there at the ceremony conducted by the Reverend and the mere fact that they were aware that they had not complied with the requirement to give a notice of intention to marry, that they did not sign a wedding certificate, and that they intended to repeat the wedding ceremony at a later date after the required notice giving, cannot negate the effect of the ceremony which conformed with s 45(1) of the Marriage Act 1961 (Cth).

• The Court held that despite the Reverend’s description of the ‘religious commitment ceremony’ and despite the mutual intention that at a later date there would be a ‘legal’ wedding ceremony, because the ceremony conducted conformed with the form and ceremonial requirements for marriage prescribed by The Baptist Union of Australia, the ceremony solemnised the marriage consistent with the requirements imposed by ss 41 and 45(1) of Marriage Act 1961 (Cth), thereby giving it validity at law.

• In relation to the ‘real consent’ argument, the Court held that the misunderstanding concerned the effect of the ceremony, not its nature and a mistake as to the effect of a ceremony does not vitiate a party's consent to a marriage and so the claim that the marriage is void for lack of real consent must fail.

We note a civil marriage ceremony, not solemnised by a minister of religion of a recognised denomination, has other requirements to be legally effective.  If a Will is made in contemplation of marriage, it is not revoked by the marriage.  It may be the contemplation of marriage is obvious from the wording in the Will or it may be established by evidence, for example, instructions to a lawyer.

We also note that pursuant to s 14 of the Wills Act 1997 (Vic) divorce, rather than revoking a Will, revokes any disposition to the divorced spouse.  The ending of a relationship where the parties are not divorced, may be a trigger a need to review a Will as separation will not automatically revoke dispositions in a Will.

The commencement or ending of a relationship may trigger the need to review not only your Will, but also other estate planning documents including superannuation death benefit nominations, appointments of medical treatment decision makers and enduring powers of attorney.

To discuss this further or for more information please contact:

Edward Skilton
Principal Lawyer
T +61 3 9611 0145 | M +61 429 077 166
E eskilton@sladen.com.au

Simran Joshi
Lawyer
T +61 3 9611 0144
E sjoshi@sladen.com.au

Magdalena Njokos
Senior Associate
T +61 3 9611 0134 | M +61 432 356 899
E mnjokos@sladen.com.au

Will Monotti
Senior Associate
T +61 3 9611 0127
E wmonotti@sladen.com.au

Bernie O’Sullivan
Principal | Chartered Tax Advisor
T +61 3 9611 0111 | M +61 488 122 902
E bosullivan@sladen.com.au

Daniel Smedley
Principal | Accredited Specialist in Tax Law
T +61 3 9611 0105 | M +61 411 319 327
E: dsmedley@sladen.com.au

Rob Jeremiah
Principal | Accredited Specialist in Commercial & Tax Law
T +61 3 9611 0103 | M +61 418 500 363
E rjeremiah@sladen.com.au