de facto relationships succession law family estate wills lawyer

I often get queried by clients as to what amounts to a “de facto spouse” in the context of claims being made against an Estate. It is very important to understand that the definition of a de facto relationship in the context of succession law is different to family law.

A “de facto spouse” is a reference to either one of two persons who are living together as a couple on a genuine domestic basis, but who are not married to each other, or related by family.

In deciding whether two persons living together as a couple on a genuine domestic basis, any of the following factors may be taken into account by a Court:

  1. The nature and extent of the common residence– it is generally necessary to show that the parties have been sharing a common residence. Maintaining separate homes makes it more difficult to prove a de facto relationship exists.  It is also important to demonstrate how the parties share the common residence. For example, if the parties occupy separate bedrooms it weakens the factor of common residence.
  2. Length of the relationship – naturally the longer the relationship the more likely it is to be treated as a marriage-like relationship. In Queensland there is a two year minimum period. Short periods of separation may not necessarily mean the de facto relationship has ended. The intention of the parties will be a relevant consideration of the Court.
  3. Whether or not a sexual relationship exists or existed – the existence of a sexual relationship, during, or at least at some stage in the relationship, needs to be established.
  4. Degree of financial dependence or interdependence – where parties, in a financial sense, treat each other with trust and generosity and intermingle their finances, this provides good evidence of a common household.
  5. Ownership, use and acquisition of property – joint ownership of property is a very important factor indicating a marriage-like relationship, particularly where property is owned by the parties as joint tenants (meaning that the property automatically transfers to the surviving person upon the death of one person).
  6. Degree of mutual commitment to a shared life – evidence of a future intention to marry is very relevant. Physical, emotional and financial support and caring in times of hardship and/or sickness is also relevant.  The stronger the support shown, the stronger the evidence of this factor.
  7. Care and support of children – where one party takes the principle caring role for either their own or the other party’s children, this will be deemed good evidence of this factor. This however does not apply if the parties do not live together under the one roof.
  8. Performance of household tasks – this factor is relevant when one party can be shown to undertake most household chores, or if household chores are shared jointly. Evidence of cleaning, shopping for food and household goods, preparation of meals, maintaining gardens, household maintenance etc will be relevant factors.
  9. Reputation and public aspects of the relationship – it is very important to be able to provide evidence as to how a couple present themselves socially or in business situations. Evidence from either of the parties, and those who have been in contact with them, will be useful in any Court proceedings. As will evidence of taking holidays together, attending family occasions such as weddings. Evidence from neighbours can carry a great deal of weight.
  10. Courts may also take into account other issues including:

(a)   Whether a single pension is received whilst living under the same roof;

(b)   The exclusivity of the relationship is only one factor that the Court will consider;

(c)   The subjective beliefs of each party to the relationship will also be considered, but the Court will look primarily to objective evidence.

The above is certainly not an exhaustive list of factors that will be taken into account. Each case will be assessed on its own merits by a Court.

If you have any queries or concerns in relation to your relationship, or whether a claim could be made against an Estate, do not hesitate to contact me.

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