How separation can impact your estate planning: Part 4 – Disputed De Facto Relationships

April 19, 2022

In part 4 of our bulletin series on the intersection of family law and estate planning, we further explore de facto relationships and what happens if you die without a will, and what is required to prove that your de facto relationship actually existed or has ended.  Click here to read parts 1, 2 and 3 of our series.

What happens if you die without a will?

If you die without a will and at the time of your death you had separated from your de facto partner, then according to the rules of intestacy in both Queensland and NSW, your former partner does not have any entitlements to your estate.

The issue that may arise is that your former partner may allege that you were still in a de facto relationship at the time of your death and they may try to bring a claim against your deceased estate.

To have standing to bring a claim against a deceased estate:

1. In Queensland, they would need to prove that they were living with you immediately prior to your death and for a continuous period of at least 2 years leading up to your death on a “genuine domestic basis”.
2. In NSW, the duration of the de facto relationship is important, as if a claimant is able to prove that they were living together in a domestic relationship for a period of not less than 2 years, then they have special status as being in a “Domestic Partnership”.

What if there is a disagreement over whether a de facto relationship existed in the first place?

If it is unclear to your partner, family or friends at the time of your death whether you were in a relationship, this ambiguity may mean that your ex-partner and your family end up at loggerheads as to the state of your de facto relationship at the time of your death.  This could lead to costly litigation involving your estate.

If there is a dispute about whether a couple were actually in a de facto relationship, the Court will look at all the circumstances of the relationship including:

• the duration of the relationship
• the nature and extent of the common residence
• whether a sexual relationship exists
• the degree of financial dependence or interdependence, and any arrangements for financial support, between you and your partner
• the ownership, use and acquisition of property
• the degree of mutual commitment to a shared life
• whether the relationship has been registered, in a State or Territory with laws for the registration of relationships
• the care and support of children
• the performance of household duties (i.e. cleaning, gardening, cooking etc.)
• the reputation and public aspects of the relationship

Proving the end of your de facto relationship

The end of a de facto relationship is more difficult to prove than the finalisation of your divorce. A divorce requires an application to the Federal Circuit and Family Court, and results in the issue of a Certificate of Divorce.  This un-controversially proves that the marriage has ended.

The end of a de facto relationship may not be recorded in writing in a formal way other than starting property proceedings in the Federal Circuit and Family Court and alleging the commencement of the relationship and that it ended over 2 years later.

Because of this, there may be a genuine question as to whether or not your de facto relationship had ended, and when. This is particularly the case if your relationship with your partner is tumultuous involving numerous breakups and reconciliations. What happens to your will if you and your de facto partner break-up and then get back together again?

For this reason, the wisest course of action is to update your will and enduring power of attorney both at the end of a de facto relationship, and upon any reconciliation with that de facto partner.

Look out for our final bulletin in this series where we discuss the steps you should take with your superannuation at the end of a relationship.

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