My Will and the Effect of Marriage, Separation and Divorce

It is very important to keep your will up to date to reflect any changes in your personal circumstances, including marriage, separation and divorce.

My Will and Marriage

In Western Australia a marriage will revoke (cancel) your will, unless it was made in contemplation of marriage. This means that any will you have made prior to your marriage will be automatically cancelled when you are married, unless it is clear that the will was made in contemplation of you being married. If you are making a will and have a pending marriage, we recommend that you include an express clause within your will, stating that the will is made in contemplation of your marriage. Whilst in some circumstances other evidence can be relied upon to prove that a will was made in contemplation of marriage, it is much clearer if an express statement is included.

My Will and Divorce

Similarly, a divorce order made after 9 February 2008 will also invalidate your will unless that will was made in contemplation of divorce. Under the current legislation a marriage is only taken to have ended:

  • when a divorce order terminating the marriage takes effect under the Family Law Act 1975;
  • on the granting of a decree of nullity in respect of the marriage by the Family Court of Australia or the Family Court of Western Australia; or
  • on the dissolution or annulment of the marriage in accordance with the law of a place outside Australia, but only if that dissolution or annulment is recognised in Australia under the Family Law Act 1975.

Like a will made in contemplation of marriage, a will made in contemplation of divorce should expressly state that it is made in contemplation of divorce.

My Will and Separation

Before the Family Court may make the divorce order the parties need to have been separated for a minimum period of 12 months.

After you have separated from your partner and whilst you are waiting for the Court to make the divorce order, it is very important to update your will to reflect your new circumstances and to ensure that the appropriate persons benefit from your estate. If you pass away before your divorce is finalised and your existing will is still valid, or if you don’t have a will, your former spouse may be entitled to a portion of your estate. To avoid this outcome, we recommend that you make a new will, in contemplation of your divorce, as soon as you separate.

Kott Gunning Recommendation

Unfortunately making a will is not always a simple process. Your will should be revisited frequently and particularly when your personal circumstances change. If you have recently separated please contact us to discuss your family law and estate planning needs.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.