Historically, our approach has been to deliberately limit the spouse definition only to lawfully married spouses on the basis that:
1. If a client is in a de facto relationship and wants that de facto to benefit, then they can include the spouse as a named beneficiary on establishment of the trust or if the trust has already been established, by exercising the power to nominate a new beneficiary;
2. Given the difficulty in ascertaining whether the de facto relationship qualifies under section 4AA of the Family Law Act, and that this determination relies on a question of fact which could change over time, our preference is to limit spouses to lawfully married spouses as it is the only objective criteria by which it is possible to ascertain at a particular point in time whether or not a person was in fact a spouse (i.e. the date of marriage or divorce); and
3. We also include the ability to nominate additional beneficiaries under the deed so a de facto spouse can be nominated as a beneficiary in the future if desired.
The approach outlined here is directly as result of our extensive experience being engaged by family law firms across the country to provide strategic advice in relation to trusts and family law issues.
This said, inspired by user feedback, from 15.6.18, advisers will have the choice in the establishment interview of whether to include de factos as eligible beneficiaries.