A De Facto Partner is automatically eligible to claim Family Provision. As Sun v Chapman demonstrates, a De Facto Relationship will exist even though the couple has ceased to love each other.


The deceased and Ms Sun had lived together for 21 years at the time of the deceased's death. Ms Sun claimed that she and the deceased had met at a caravan park, while the defendant claimed they had met when Ms Sun responded to the deceased's advertisement for cooking and cleaning services. Regardless, Ms Sun and the deceased had been engaged in an intimate relationship for 4 or 5 years from 1999, and in 2003 the deceased executed a statutory declaration that he and Ms Sun were living in a de facto relationship.

Significant tension between Ms Sun and the deceased towards the end of his life caused their relationship to deteriorate, and the deceased passed away, leaving no provision for Ms Sun in his will. Ms Sun sought provision either as a de facto partner or person living in a close personal relationship.

At first instance, a de facto relationship was found to have existed between Ms Sun and the deceased, but the Court concluded the relationship had ended before the deceased’s death. Instead, the Court found Ms Sun was a person living in a close personal relationship with the deceased. However, additional factors warranting the application were not found and her claim was dismissed. On appeal, the key issue was whether Ms Sun was, in fact, still a de facto partner and thus automatically eligible to lodge a family provision claim.

Determining De Facto Status

The Court of Appeal acknowledged that a person is a de facto partner if they are in a registered relationship under the Relationships Register Act 2010 (NSW) or are in a de facto relationship. A person is in a de facto relationship where they are in a relationship as a couple living together and they are not married or related.

The following circumstances may be taken into account:

  • 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 and any arrangements for financial support between them;
  • 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; and
  • The reputation and public aspects of the relationship.

Conclusion on De Facto Status

The Court of Appeal found that Ms Sun and the deceased were in a de facto relationship and that relationship had not ended prior to death. Relevant factors to the determination included:

  • That Ms Sun and the deceased had lived together until the deceased's death.
  • That they had engaged in various activities as a couple, including going to beaches and restaurants together, shopping together, going on overseas holidays and sharing expenses.
  • That whilst a large fight had occurred between them in the later years of the relationship which led to Ms Sun temporarily staying with a friend, the deceased had asked her to come back a day or two later.
  • That while their neighbour had witnessed fights, they had also witnessed them leaving the house together for walks and holding hands, which was also corroborative evidence that Ms Sun was his de facto partner rather than a carer.
  • That while Ms Sun had at times stayed with her son and complained about fighting with the deceased, and the deceased had communicated his belief to the son that Ms Sun did not love him anymore, they continued to live together.
  • That the deceased had never indicated to Ms Sun that the relationship had ended and that a de facto relationship does not terminate when the parties stop loving each other.
  • That Hospital records as late as 2018 described Ms Sun as the deceased’s ‘partner’.


Ms Sun was deemed a de facto partner and thus an automatically eligible person. She lodged a claim for a family provision order and was awarded $555,000 to adequately provide for her proper maintenance, education and/or advancement in life.

The Court did note that even if she had merely been a person living in a close personal relationship with the deceased, there were factors that would have warranted the application contrary to the previous Court’s findings.


The question of whether or not a de facto relationship exists is determined with regard to the circumstances of the relationship. However, it is important to note that even if a de facto couple ceases to be intimate or ceases to love each other, those facts alone are insufficient to sever a de facto relationship and will not preclude an applicant from claiming family provision.

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.