SA De Facto Issue with Inheritance

[RebeccaBec]

If you have recently split up with a de facto partner, are you obliged to give them any of an inheritance that you received after the split?

 

[Tracy B]

Hi Rebecca,

How long were you with your de facto partner? Were you living together? How long ago did you split?

 

[RebeccaBec]

Hi Rebecca,

How long were you with your de facto partner? Were you living together? How long ago did you split?

Been together 17 years, living together, moved out this week, inheritance due end of May from Mother passing away end of November last year.

 

[Tracy B]

Hi Rebecca,

Given your relationship lasted more than 2 years, both parties are entitled to a property settlement (and possibly maintenance). With property settlements, it is always best to agree between the parties yourselves, record the agreement in writing and get a consent order from court to validate it by court. If you cannot decide, then either party can apply to court to decide. If this happens then the court will decide (i) whether the inheritance forms part of the "shared pool" of assets, or (ii) whether it doesn't and a provision is made for the inheritance under fair and just principles (i.e. the other party may get a slightly higher proportion of the shared pool because you have the inheritance so will be relatively better off). The court will consider:

• When the inheritance is received, so here, it would be post-separation, so less likely to form part of the shared pool of assets
• How much is the inheritance
• Whether the party not receiving the inheritance could be said to have made a contribution to it

Therefore, it is not certain. Depending on the size of the inheritance, you, as receiving party, may wish to argue that it does not form part of the shared pool and instead, make a provision for it in the splitting of the shared pool to reflect your relatively better off position.

This page from the Legal Services Commission of SA on Dividing Property may be of assistance.