The most important thing to know here is that the Property (Relationships) Act 1976 (PRA) gives you a choice between two options (Option A and Option B) for how the relationship property is divided.
Choosing Option A gives you half the relationship property, under the PRA.
Choosing Option B gives you the right to take what has been left to you in your partner’s will.
Each option is exclusive. You cannot usually claim 50% under Option A and also claim particular items left for you in the will, such as special chattels you would receive under Option B.
A benefit of an Option A claim is that it has priority over the rights of all other beneficiaries to take under your late partner’s estate, and the claims of other relatives.
Whether you choose Option A or Option B, you can also make a ‘top up’ application for further provision from your spouse’s estate under the Family Protection Act 1955 (FPA). If you and your partner were not married you can still make a claim under the FPA so long as you and your partner were living together in a de facto relationship when your partner died and your relationship lasted for more than 3 years.
If you and your partner were living together when your partner died and your de facto relationship lasted for less than 3 years, you can still apply under the FPA but only if there is a “child of the de facto relationship”, or you made a significant contribution to the relationship and, in both cases, it would cause serious injustice not to allow you to claim.
If you have selected Option A then all property in your spouse or partner’s estate is presumed to be relationship property, with the exception of inheritances or gifts which have not been intermingled with relationship property. This means that you have the advantage of not having to prove that your spouse or partner’s property is relationship property, which would otherwise be the case had your spouse or partner been alive.
Unless the estate is a “small” estate the choice between Option A and Option B must be made no later than 6 months after the grant of probate or letters of administration. This time limit is a strict one.
The choice must be in writing using a particular form which a relationship property lawyer can provide for you. The form needs to include a statement by your relationship property lawyer certifying that she or he has explained the consequences of the choice to you.
If you don’t make a choice between Option A and Option B, by default you will be assumed to have elected Option B in which case you will receive what, if anything, has been left to you under the will.
It’s important to note that if you have elected Option A and your claim against the estate cannot be resolved, for example, because of opposition from the named beneficiaries, Family Court proceedings under the PRA must be commenced no later than 12 months after grant of probate or letters of administration.
Different rules apply for dividing property when a relationship is of short duration (usually less than 3 years) depending on whether you and your late partner were married or in a de facto relationship.
If you were in a short duration de facto relationship you can only make a claim under the PRA if there is a “child of the de facto relationship” or you made a significant contribution to the relationship and, in both cases, it would cause serious injustice not to allow you to claim. In both cases, your property would be divided according to contributions to the relationship, not on a 50/50 equal sharing basis. Otherwise, you would not be entitled to make a claim under the PRA and your property would be shared according to established legal and equitable principles. You should take advice from a relationship property lawyer to understand what rights you may have in that regard.
If you and your partner were married or in a civil union lasting for less than 3 years (including any preceding period where you lived together as a couple) you will have the same rights as you would have if your marriage or civil union lasted for more than 3 years. That means that you would have the same rights to a 50/50 equal share of the relationship property, unless the Court decided that that would be unjust.
