de facto spouse partner couple deceased estate wills lawyers brisbane queensland

Who is considered a spouse or de facto spouse?

Published: May 02, 2019 | Author: Chloe Kopilovic

We are frequently asked by clients what the requirements are to be considered a spouse, or a de facto spouse in relation to a deceased estate.

This is important because a spouse or de facto spouse is eligible to make an application for provision against a Will where they have not been adequately provided for.

Who is considered a spouse?

When looking at a deceased estate, the following persons people are considered a spouse of a deceased person:

  1. the deceased’s husband or wife;
  2. the deceased de facto partner; or
  3. the deceased’s civil partner (which is a partnership registered under the Civil Partnership Act 2011 (Qld)).

What is considered a de facto spouse or partner?

To be considered a de facto partner for the purposes of making a family provision application, the deceased and the person must have been living together as a couple on a genuine domestic basis for a continuous period of at least 2 years ending on the deceased’s death.

What is a genuine domestic basis?

The Court considers a number of factors when deciding if two people are living together on a genuine domestic basis. These factors include:

  1. the nature and extent of their common residence;
  2. the length of the relationship;
  3. whether or not a sexual relationship exists or existed;
  4. the degree of financial dependence or interdependence, and any arrangement for financial support;
  5. their ownership, use and acquisition of property;
  6. the degree of mutual commitment to a shared life, including the care and support of each other;
  7. the care and support of children;
  8. the performance of household tasks;
  9. the reputation and public aspects of their relationship.

There is no strict formula to determine whether a couple are living together on a genuine domestic basis. The Court weighs all of the above factors against one another to determine whether there is a de facto relationship. However, it is important to keep in mind that the Court has held that simply sharing a common residence is not enough to prove a de facto spouse relationship. There must be other indicators present to be considered living together on a ‘genuine domestic basis’.

It is important to note that gender is not a relevant consideration in relation to two people living together on a genuine domestic basis. This means that a de facto relationship includes a same sex couple.

If you have any questions with spouse or de facto spouse regarding deceased estates, please contact our team today.