What constitutes a de-facto spouse?

Published 07 Sep 2017

Not everyone can contest the will of a loved one in NSW. The courts must consider you an eligible person under the relevant legislation, which in this state is the Succession Act 2006.

Spouses of the deceased are a good example of an eligible person. In fact, when current or former husbands or wives pursue family provision claims, they are successful 83 per cent of the time, according to research compiled by the University of Queensland and other organisations.

But not everyone is formally wedded to a partner, despite living in relationships akin to a marriage. This is where the concept of a de-facto spouse arises - the Act allows for claims from people who were in these types of arrangements with the deceased prior to their death.

Assessing de-facto relationships

Marriages create official documentation that verifies the relationship between spouses. De-facto partners typically don't have similar paperwork to support their case, which is why the courts must assess several factors when deciding whether a person is eligible to claim.

Under the Family Law Act 1975, judges will examine:

  • The length of the relationship;
  • The couple's living arrangements;
  • How finances were organised;
  • Whether a sexual relationship existed;
  • Whether the couple owned a house and how it was bought;
  • If the relationship was registered under state or territory law;
  • Whether the partners have children or jointly care for children together; and
  • How the relationship was presented in public.

De-facto relationships can consist of same-sex partners, and may exist between couples where one of the individuals is married to someone else.

Making a family provision claim

If you were in a de-facto relationship with a loved one prior to them passing away, you may be able to make a family provision claim against their estate.

Contesting a will is a difficult decision to make, particularly at such an emotional and distressing time. However, if the deceased failed to leave you adequate provisions, you have no other choice but to seek legal representation.

Gerard Malouf & Partners Will Dispute Lawyers can help de-facto spouses pursue a no-win, no-fee claim in order to receive the financial support they feel they deserve.

We provide free initial consultations, either on the phone or face to face, as well as paying all the upfront fees associated with a family provision claim and other types of will contestation.

If you'd like to learn more, please contact us today.

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