Am I in a de-facto relationship?

There are many different types of family structures that exist in our Queensland communities, and it is important for a person to consider how their family might be viewed or treated when they pass away. This is especially the case in relation to de-facto relationships.

What is a de-facto Relationship?

There is no universally applied definition of a de-facto relationship in Australia. The exact criteria changes depending on the area of law or legislation to which your legal issue relates. However these are some of the factors the Courts may take into account when considering whether or not two people are in a de-facto relationship in Queensland:

  • The duration of the relationship
  • Domestic set-ups, such as a shared residence
  • Whether a sexual relationship exists
  • Childcare and support arrangements
  • Extent of financial dependence or interdependence
  • Arrangements for financial support
  • Reputation and public nature of the relationship
  • Joint ownership, acquisition or use of property
  • The division of household tasks
  • Degree of mutual commitment to a shared life
  • Whether the relationship was registered

One should also turn their mind to when a de-facto relationship can be considered to have ended? Often this is the cause of uncertainty that people require legal assistance to remedy after a person has passed away.

De-Facto relationships in Family Provision Applications

The decision to contest a loved one’s will may depend on whether the claimant is an eligible person under the Succession Act 1981 (QLD).  Spouses, children, and certain dependents are entitled to pursue provision from the deceased’s will.

Is my current/former partner able to be included as a spouse?

There are so many variables in relationships in modern times it is safe to say that the boundaries will continue to be tested in this area as time moves forward. However, here are some contemporary issues to note when looking at your own Estate planning needs, or in the event that a beloved passes away-

Same-sex couple?

  • Yes, you can still launch an inheritance dispute against a former partner’s estate because you can be considered de-facto spouse provided the relationship meets certain conditions. This remains to be case although Australia does not, at the time of writing, legally recognise same-sex marriage.

Living apart for extended periods?

  • Yes, a number of cases have been successful in having the ‘shared residence’ factor relaxed in situations where the absence of one partner is of an involuntary nature, such as where it is required fro work purposes[i] (i.e. FIFO), to care for elderly parents[ii], or due to incarceration[iii].

My partner is still technically married to his ex?

  • Yes, probably. Perhaps a more extreme relationship example, however a deceased may be found to technically have more than one “spouse” in some circumstances. For example, where a marriage is not finalised with a divorce, property settlement or separation, and a subsequent (or parallel) relationship with a second partner can also be identified[iv]. In this scenario there may be a finding by the Courts that a deceased had two spouses.

Each case is different and it can be difficult to predict which particular factors a judge will place more emphasis on when deciding a person’s eligibility to make a claim for provision.

If the Courts believe a person is entitled to contest the will, the individual may receive a proportion of the deceased’s estate. However, the judge must take into account the competing needs of the other beneficiaries.

Others areas that should be reviewed if you are in, or ending, a de-facto relationship

If you are in a significant relationship, further thought should also be given to the following areas, unable to be covered in this article:-

  • Intestacy – who would my estate go to if I die without a valid will?
  • Superannuation benefits – are my nominations up to date and/or is my partner eligible to claim benefits upon my death?
  • Children – how will my child/ren be provided for if my current relationship is not recognised and/or who can be included as my child for the purposes of a claim against my estate/or upon intestacy (i.e. step-children, adopted children, surrogacy, children of same – sex parents)?

Turner Freeman Lawyers – Wills & Estates specialists

Should you have any queries whatsoever about how your family will be provided for in your estate plan or wish to discuss making/defending a Family Provision Application, please do not hesitate to contact Turner Freeman Lawyers Wills and Estates Team on (07) 3025 9000. Our Queensland offices are in Brisbane, Logan, North Lakes, Ipswich, Toowoomba, Gold Coast, Sunshine Coast and Cairns.

[i] PY v CY ([2005] DCA 247

[ii] W v T [2005] QSC 168

[iii] Howland v Ellis [1999] NSWSC 1142