How separation can impact your estate planning: Part 3 – De Facto Relationships

April 3, 2022

In part 3 of our series on the cross-over between estate planning and family law, we outline what impact the end of a de facto relationship has on the validity of your estate planning documents.  Click here (link to previous bulletins published) to read part 1 and part 2 of our series

What is a de facto relationship and what happens (legally) when it ends?

When we talk about the end of a de facto relationship, it is important to distinguish between the laws of the family law system (a federal system) and the laws of wills and estates (which differ between states).

Family law

From a family law perspective in Australia, if you and your partner are deemed to have been in a “de facto relationship”, then upon your separation you essentially have the same rights as a married couple when it comes to family law matters including property settlements and spousal maintenance.

The Federal Circuit and Family Court can make property orders if you are deemed to have lived together as a couple on a “genuine domestic basis” for a period of at least 2 years.  In some circumstances, the Court can make orders if you have lived together for less than 2 years, for example, if you have a child from that de facto relationship. You have two years from the date of separation to apply to the Federal Circuit and Family Court for orders for the division of your property.

Wills and estates

When a de facto relationship ends, de facto couples are not treated the same as married couples when it comes to the impact on your estate planning documents and how your estate is administrated in the event of your death.  There are also differences in the rules between Queensland and NSW.

1. Effect of end of de facto relationship on your enduring power of attorney

In both Queensland and NSW, the end of a de facto relationship does not affect any appointment of your partner to make health and/or legal/financial decisions for you in your enduring power of attorney (EPOA) and/or appointment of enduring guardian (AOEG). This means that your ex-partner will still have the power to make these decisions for you, even after your de facto relationship has ended.

For most people, this is not what they want and so it is important that you update these documents as soon as possible after separation.

2. Effect of end of de facto relationship on your will

In Queensland, the end of your de facto relationship has the same effect on your will as the finalisation of a divorce in Queensland, i.e. any provision in your will which appoints your former partner as executor, trustee and/or guardian, or any gifts to them are revoked.

In NSW, the end of your de facto relationship does not affect the validity of your will.  Therefore, if you have gifted items to your ex-partner or appointed them as your executor, trustee and/or guardian, those provisions will still apply.  As such, it is important that you update your will as soon as you and your partner separate.

Look out for our next bulletin where we discuss the rules of intestacy (dying without a will) for de facto relationships and what happens when the existence or end of a de facto relationship is disputed.

For more information please contact a member of our estate planning team at Fox and Thomas.