Legislative Assembly for the ACT: 1996 Week 3 Hansard (28 March) . . Page.. 813 ..
MR HUMPHRIES (Attorney-General) (3.25): I present the Family Provision (Amendment) Bill 1996, together with its explanatory memorandum.
Title read by Clerk.
MR HUMPHRIES: Mr Speaker, I move:
That this Bill be agreed to in principle.
This Bill makes a number of important amendments to the Family Provision Act 1969. The purpose of the Family Provision Act is to ensure that the family of a deceased person receives adequate provision out of the estate. If a person is not satisfied with what he or she receives under the will of a deceased person or, if there is no valid will, under the rules of intestacy, that person may be able to apply to the Supreme Court for provision from the estate of the deceased person. To be eligible to apply to the court, a person must fit into one of the categories set out in section 7 of the Act. Legally married spouses may apply, and also children. In certain circumstances, former spouses, stepchildren, grandchildren and parents of the deceased may also apply.
However, a domestic partner who was not married to the deceased cannot make application under the Act. The only legal recourse available to a domestic partner is to apply to the Supreme Court for relief under the laws of equity. This is both uncertain and potentially expensive. In addition, the present situation conflicts with the principles of the Domestic Relationships Act 1994, which confers rights on parties to domestic relationships regardless of marital status.
This Bill adds what are termed "eligible partners" and "domestic partners" of the deceased to the list of those eligible to apply under the Family Provision Act. An eligible partner is a person other than the legal spouse of the deceased who, whether or not of the same gender as the deceased, was living with the deceased at any time as a member of a couple on a genuine basis. The Bill further provides that, to be an eligible partner, a person must have lived with the deceased for two or more years continuously or be the parent of a child of the deceased. A domestic partner is a person who lived with the deceased in a domestic relationship where one partner provided personal or financial commitment and domestic support to the other for at least two years continuously. This could include a long-term carer.
The Bill sets out in detail the criteria which the court is required to apply before making an order for provision from an estate. Briefly, these are: The character and conduct of the applicant and the nature and duration of the relationship between the applicant and the deceased; any financial and other contributions by the applicant or the deceased or both of them to the property or financial resources of either or both of them; any contributions by the applicant or the deceased to the welfare of the other or to any child of either person; the income, property and financial resources of the applicant and the deceased; the physical and mental capacity of the applicant and the deceased; the responsibilities of the applicant or the deceased to support any other person; any order under the Domestic Relationships Act 1994 adjusting the interests in the property of the applicant or