Child of defacto spouse = step-child in family provision claim

familyIn today’s society, it’s not uncommon for someone to refer to their defacto partner’s child as their own.  They are often just as close to them, if not even closer, than their own, biological children.

The Supreme Court of Victoria today handed down a decision finding that a child of a defacto spouse was a step-child of the deceased and therefore an eligible person to make a family provision claim.

The case of Bail v Scott-Mackenzie [2016] VSC 563 involved a claim by the child of the defacto of the deceased.  The deceased died leaving no children of his own and his former defacto (who was the mother of the Plaintiff) had died 15 years prior to the deceased’s death. After the death of his former spouse, the Plaintiff’s mother, he had commenced a new relationship and had left his estate to his new spouse.  He left no provision for the Plaintiff.  The deceased and the Plaintiff’s mother shared a defacto relationship spanning 40 years.

The Court was tasked with determining two main issues:

  1. Is the Plaintiff a step-child within the meaning of the Act, even though the deceased was not married to her mother?
  2. If the Plaintiff was a step-child of the deceased, did their relationship as such cease as at the date of her mother’s death?

The Court held, taking into account much of the explanatory memorandum relating to the introduction of the legislation making a step-child eligible for such a claim, that the legislation should be interpreted to include a step-child arising from a defacto relationship as well as one where the parties were married.

The Court further held that the death of the Plaintiff’s mother prior to the death of the deceased did not result in a dissolution of that relationship and breaking the connection between the deceased and the Plaintiff as step-father and step-daughter.

The Court determined that whilst there was no marriage between the deceased and the Plaintiff’s mother, it did not change the fact that they were spouses and domestic partners.  The Court further referred to the societal attitudes that married or unmarried couples are afforded the same, or near identical rights (at para 50). The Court said:

These considerations indicate an intent on the part of the legislature to embrace a more modern meaning of the word stepchild as including a child of a person who is the deceased’s unmarried domestic partner.  In short, a wider meaning of stepchild gains some support from the include of domestic partners as eligible persons. [para 51].

The Court said provided that the relationship is not severed by anything other than the death of the natural parent of the child, the step-relationship shall continue.

You can read the case here.

Note:  For the sake of clarity – this is a Victorian case and accordingly the law of Victoria applies.  In Queensland, section 40A of the Succession Act 1981 (Qld) does not necessarily apply in the same way as section s40A(3) refers, in part, to marriage thereby assuming the definition of ‘step-child’ refers to that only of a step-child relationship arising from a marriage and not de facto.  The purpose of this case note is to highlight the court’s view of the relationship and shed light on the topic that is likely to cause uncertainty into the future as to the true meaning of a step-child for the purpose of family provision claims.

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