How is a de facto relationship defined?

Published 28 Oct 2015

Author: David Cossalter

One of the most important considerations when you are preparing to contest a will is knowing whether you are eligible to do so or not. Under the Succession Act 2006, only certain people are allowed to make a challenge and if you are not related to the deceased, this process is a lot harder.

A de facto partner is a perfect example of this. In NSW, those living in this type of relationship at the time of the death are eligible to make a claim for the estate - provided they can demonstrate the relationship existed.

This then begs two questions, what is a de facto relationship and how can you prove that you were in one with the deceased?

De facto relationship definitio

According to the Succession Act 2006, a de facto relationship involves two people (either opposite-sex or same-sex) who live as a couple, but are unmarried.

Due to the often short nature of de facto relationships, it is hard to put accurate statistics to it. However, in 2012, the Australia Bureau of Statistics estimated that the number of people in this type of relationship had increased 25 per cent between 2001 and 2006. Given the number of marriages per year is falling, it is a fair assessment that more people are living in de facto relationships today than ever before.

How do I prove this relationship?

In the absence of a marriage certificate, someone in a de facto relationship who wants to contest the estate of their partner will need to prove a number of elements to the court. It is important to note that this can include emotional evidence as well as physical testimony.

Here are five examples that may be considered under NSW law:

1) Relationship duration

Evidence that you were in a committed relationship of at least two years may be required by the court.

2) Living arrangements

Both parties need to have been living together to make a de facto relationship. Evidence such as contracts, signatures and other documents can be useful in this situation.

3) Ownership of property

If you owned or acquired property together, this can act as evidence to prove the de facto relationship.

4) Child support 

The need to support and look after children in a de facto relationship is another circumstance that the courts take into account.

5) Mutual commitment

If you had planned anything for a shared life together, this can act as additional evidence in court.

For more information about de facto relationships in relation to contesting a will, contact our expert team today.

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