In Australia, the power to make laws with respect to marriage rests with the Australian Federal Parliament. The Marriage Act 1961 (Cth) governs the eligibility and process of marriage. In 2004, it was amended to define marriage as a union between a man and a woman. It does not permit the marriage of same-sex couples. Accordingly, same-sex couples are not afforded the right to the same legal entitlements heterosexual couples obtain when they marry. While at a federal level the debate over same-sex marriage continues, various Australian states have taken steps to introduce legislation to address the difference by recognising same-sex unions and granting rights that would not otherwise exist. The most recent of the Australian states to do this is Queensland.

This article provides an overview of the Civil Partnerships Act 2011 (Qld) with respect to succession law in Queensland. I will first outline the mechanics of the Act, then address the succession law consequences arising from the Act, then briefly compare the various state legislative schemes.

The Civil Partnerships Bill was passed by the Queensland Parliament on 30 November 2011. The substantive provisions of the Civil Partnerships Act came into force on 23 February 2012. The significance of the Act is that it creates a new category of legally recognised relationship in Queensland – civil partner – with consequential legal rights attaching to that relationship.

Section 5 of the Act establishes the eligibility criteria for entering into a civil partnership. To be eligible a person cannot be married, in a civil partnership or in a prohibited relationship, and must live in Queensland. A prohibited relationship is one with a lineal ascendant or descendant¹.

Adults in heterosexual relationships may enter into a civil partnership².

Section 6 of the Act sets out the process of entering a civil partnership. A civil partnership may be entered into by the couple either registering their relationship or making a declaration then registering. Before doing so, a notice in the approved form must be provided either to a civil partnership notary or, if the civil partnership notary is not the registrar³, to the registrar. If the applicants seek to make the declaration, the notice cannot be more than 12 months in advance of or less than ten days before the declaration.

The Act creates a new Part 5A in the Births, Deaths and Marriages Registration Act 2003 (Qld), establishing a framework for the registration of the partnership in Queensland. A civil partnership must be registered with the Registrar of Births, Deaths and Marriages⁴. The start date for registration was 2 April 2012⁵.

A civil partnership is terminated by the death of a party to the partnership, the marriage of a party to the partnership or a court order.

Where termination is sought by court order, the Act provides the District Court of Queensland with the power to terminate the partnership. The Court must be satisfied that the parties to the civil partnership have lived separately and apart for a continuous period of at least 12 months, that the civil partnership has broken down, and that there is no likelihood of a reconciliation between the parties. The termination is effective from the date of the court order, and the Court must give a copy of the order to the Registrar within 28 days of making the order.

The court process of terminating the partnership can be circumvented by entering a marriage, as that automatically terminates a civil partnership. It is possible for one party to the civil partnership to leave the relationship and marry, thereby terminating the civil partnership without the knowledge of the other. This scenario can have a significant effect on succession planning and eligibility to make claims against an estate.

To achieve its objectives, the Act amends other acts⁶ to give effect to its provisions.

New definitions of spouse and child

The amendments to the definitions of spouse and child have a significant effect, as they are the categories of people who secure the bulk of the rights in deceased estates.

Amendments to s5AA of the Succession Act 1981 and s36 of the Acts Interpretation Act 1954 (Qld) now include a civil partner in the definition of spouse.

Amendments to the Status of Children Act 1978 relate to the presumption of parentage of children conceived naturally and through artificial means during the civil partnership.

These definitions result in an expansion of those persons who are entitled to:

• make a claim for further and better provision from a deceased’s estate under Part 4 of the Succession Act 1981 (Qld)
• share in the estate of an intestate pursuant to Part 3 of the Succession Act 1981 (Qld)
• apply for a grant of representation in accordance with chapter 15 of the Uniform Civil Procedures Rules 1999 (Qld); and
• obtain a copy of a will pursuant to s33z of the Succession Act 1981 (Qld).

The Succession Act 1981 (Qld) is amended to include new provisions addressing the impact on wills of entry into or termination of a civil partnership.

Succession Act 1981 (Qld), s14A: effect of a civil partnership on a will

The new provision s14A specifies that entry into a civil partnership revokes a will, with exceptions detailed in s14A(2) relating to gifts to the civil partner; appointments of executor, trustee, advisory trustee or guardian; powers of appointment; and wills made in contemplation of the civil partnership.

Succession Act 1981 (Qld), s15A: effect of end of a civil partnership on a will

The new provision s15A details the effect of termination of a civil partnership on a will. Termination of a civil partnership revokes dispositions made in a will to that civil partner, appointment as executor trustee and guardian, and powers of appointment, with exceptions detailed in s15A(2) applying to the appointment of a testamentary trustee of a trust or power of appointment for the former civil partner’s children.

Succession law differences between a de facto couple and married and civil partnership couples

The Act creates differences between the rights of married or civil partners and those of de facto couples. For the purposes of the Queensland intestacy provisions, the rights of civil partners are aligned with the rights of a married couple. For example⁷:

• Married and civil partnership spouses are more likely to take an entitlement on intestacy because marriage and civil partnership generally revoke a will8. Where a married or civil partnership spouse does not make a will after the marriage or civil partnership, the union revokes the existing will. Accordingly, under the intestacy provisions, the surviving spouse will take their share in the estate of the deceased spouse. Contrast this with where the couple enter a de facto relationship: the acquisition of a de facto partner does not revoke the prior will, so the prior will stands.
• In the case of married and civil partners, separation alone does not end the spouse’s rights on intestacy. By contrast, the status of de facto spouse is lost by separation, ending rights on intestacy.

The following is a list of Australian states that have enacted legislation allowing registration of civil partnerships (or equivalent):

• Tasmania – Relationships Act 2003
• Victoria – Relationships Act 2008
• New South Wales (NSW) – Relationships Register Act 2010
• Australian Capital Territory – Civil Partnerships Act 2008;
• Queensland – Civil Partnerships Act 2011.

In terms of the definition of spouse, all, except NSW, have redefined spouse for the purposes of succession law⁹.

With respect to mutual recognition, Tasmania is currently the only state that recognises both corresponding state and international laws¹⁰. Queensland¹¹, NSW¹² and the Australian Capital Territory¹³ recognise the registration of a civil partnership (or equivalent) in another state as a registered partnership (or equivalent) under their scheme, and carry safeguards to prevent entry into a civil partnership (or equivalent) where the parties are currently in a civil partnership (or equivalent) under the laws of another state.

For international schemes, Queensland, New South Wales and the Australian Capital Territory each have provision for mutual recognition through the regulations, yet at the date of writing none have implemented regulations to give effect to the same¹⁴.

Finally, the Victorian Relationships Act 2008 contains ambiguities¹⁵ about recognition of corresponding legislative schemes. Through the interrelation of sections 5 and 6 of the Relationships Act 2008 (Vic) it is arguable whether persons who have entered into a civil partnership (or equivalent) under the laws of another jurisdiction may also register a separate and further civil partnership in Victoria.

While the legislation is in its infancy, it is difficult to gauge the take-up rate, so it is hard to know to what degree these changes will affect day-to-day practice in Queensland. It is, however, important to note that legislation of this type was first introduced in 1989 by Denmark, followed by other European countries, along with New Zealand, Canada and some states of the US. In a global marketplace it is important for succession lawyers to review their practices to incorporate consideration of this and corresponding legislation into their risk-management procedures.