The new Wills, Estates and Succession Act will change these rules.
When the new legislation is brought into force, if you make a gift in your will to your married spouse, the gift will be considered revoked after you and your spouse have lived separate and apart for two years. The two year separation rule will apply if either you or your spouse intends to separate permanently. In the case of married spouses, a divorce will still revoke the gift. But if married spouses have lived separate and apart for two years or more, it will no longer be necessary for them to have divorced for a gift in a will to be considered revoked. There are other triggering events under the Family Relations Act that will also revoke the gift.
In the case of a common law relationship, the gift will be considered revoked when the relationship terminates.
These rules are subject to you showing a different intention in your will. So if your will indicates that you would like the gift to your spouse to take effect despite any separation or divorce, the gift will not be revoked by your separation or divorce.
Section 56 of the new legislation sets this out as follows:
(1) This section is subject to a contrary intention appearing in a will.
(2) If a will-maker
(a) makes a gift to a person who was or becomes the spouse of the will-maker,
(b) appoints as executor or trustee a person who was or becomes the spouse of the will-maker, or
(c) confers a general or special power of appointment on a person who was or becomes the spouse of the will-maker,
and after the will is made and before the will-maker's death the will-maker and his or her spouse cease to be spouses under section 2 (2) [when a person is a spouse under this Act], the gift, appointment or power of appointment is revoked and the gift must be distributed as if the spouse had died before the will-maker.
(3) The operation of subsection (2) is not affected by a subsequent reconciliation of the will-maker and the spouse.
(4) For the purposes of subsection (2), the relevant time for determining whether a person
(a) was the spouse of a will-maker is at the time the will was made, or
(b) became the spouse of the will-maker is at any time after the will was made and before the spouses ceased to be spouses under section 2 (2).
Section 2 sets out both when a person is considered to be a spouse, and when she ceases to be one:
2 (1) Unless subsection (2) applies, 2 persons are spouses of each other for the purposes of this Act if they were both alive immediately before a relevant time and
(a) they were married to each other, or
(b) they had lived with each other in a marriage-like relationship, including a marriage-like relationship between persons of the same gender, for at least 2 years.
(2) Two persons cease being spouses of each other for the purposes of this Act if,
(a) in the case of a marriage,
(i) they live separate and apart for at least 2 years with one or both of them having the intention, formed before or during that time, to live separate and apart permanently, or
(ii) an event occurs that causes an interest in family assets, as defined in Part 5 [Matrimonial Property] of the Family Relations Act, to arise, or
(b) in the case of a marriage-like relationship, one or both persons terminate the relationship.
(3) A relevant time for the purposes of subsection (1) is the date of death of one of the persons unless this Act specifies another time as the relevant time.