Pursuant to section 57(1)(b) Succession Act, a person who was living with the deceased in a de facto relationship at the time of death is eligible to make a family provision claim. But what constitutes a de facto relationship for the purposes of a family provision claim?

De Facto Relationship Defined

The meaning of a "De Facto Relationship", for the purposes of the Succession Act, is defined in section 21C of the Interpretation Act, as follows:

A person is in a de facto relationship with another person if:

(a) They have a relationship as a couple living together, and
(b) They are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.

In determining whether two persons have a relationship as a couple and are therefore in a de facto relationship, all the circumstances of the relationship are to be taken into account, including the following:

  • The duration of the relationship.
  • The nature and extent of their common residence.
  • Whether a sexual relationship exists.
  • The degree of financial dependence or interdependence.
  • The ownership, use and acquisition of property.
  • The degree of mutual commitment to a shared life.
  • The care and support of children.
  • The performance of household duties.
  • The reputation and public aspects of the relationship.

However, no particular finding in relation to any of the above matters is necessary to establish whether two persons have a relationship as a couple.

The Case Law

A de facto relationship only exists where it is shown that the parties are living together as a couple. While the living together requirement necessarily imports a locational element on the test for a de facto relationship, the essence of a de facto relationship is the merger of two individual lives.

Accordingly, the living together requirement may be established even though the couple only live together a few days a week. However, a de facto relationship must be distinguished from a relationship of two people who live apart but have a sexual relationship and sleepover at each other’s houses from time to time; as well as a relationship between two people who share a house but do not have a romantic connection to each other and have other sexual partners.

It is often assumed that a couple needs to live together for at least two years before the relationship can be classed as a de facto relationship, which is true for some areas of the law. However, the Succession Act simply provides that to be eligible to contest the deceased's will, the applicant must have been in a de facto relationship with the deceased at the time of their death. Thus, in the context of family provision, eligibility does not require the relationship to have existed for at least two years.

Persons who are in a de facto relationship may register their relationship under the Relationships Register Act. The fact that a relationship has been registered suggests that is a de facto relationship exists; however, it is not necessarily conclusive. In effect, registration is no more than a self-assertion that a relationship exists.

DISCLAIMER: The information provided above is published for general informational purposes only and is not intended to be nor should it be relied upon as a substitute for legal or other advice.