Contesting A Will: What Constitutes a ‘De Facto Relationship’

In Australia, a growing number of couples are in committed long-term relationships but are consciously choosing not to get married.  According to the latest census, 16% of Australian couples now live in a de facto relationship, which is up from 10% fifteen years ago. Furthermore, the number of cohabiting couples who are unmarried and have children has risen from 4% to 11% in the same period.

De facto relationships are clearly on the increase, and it’s important to be aware of the implications that this type of relationship may have in the event of the death of you or your partner.

Are De Facto Partners Eligible to Contest a Will

In Victoria, there are a number of people who may be eligible to contest a Will. In order to qualify as an ‘eligible person’, the involved party must be personally affected by the outcome of the case.  In Victoria, this includes the following:

  • The spouse of the deceased
  • The de facto partner of the deceased
  • Any children of the deceased (extending to step-children and grandchildren in some cases)
  • Any other people who were dependent on the deceased

Who is Considered a De Factor Partner of the Deceased?

The de facto partner of the deceased is the person with whom the deceased was living in a de facto relationship at the time of their death.

Under the Family Law Act [1975], a de facto relationship is defined as ‘a couple living together on a genuine domestic basis.’ This relationship can exist even if one of the persons was legally married to someone else or in a registered relationship or with someone else, or if both parties are the same gender.

How Can De Facto Partners Contest a Will

When it comes to contesting a will, there are several factors that will be taken into consideration in determining whether a de facto relationship existed.  The following matters may be taken into account:

  • The length of the relationship
  • The nature and extent of common residence
  • Whether or not there was a sexual relationship between the parties
  • The degree of financial dependence or inter-dependence between the parties.  Arrangements for financial support will also be taken into consideration.
  • The ownership, use and acquisition of property
  • The degree of mutual commitment to a shared life
  • The care and support of any children
  • The reputation and public aspect of the relationship.

While it is not usually necessary to establish all of the above matters, it’s important to be aware that these may be taken into consideration.

For more information, see our Contesting a Will FAQs.

Alternatively, if you have found yourself inadequately provided for by a recently deceased de facto partner, we may be able to help. At Hentys, our team of expert Estate Lawyers can provide you with professional assistance in settling Estate and Will disputes. For more information, contact us today.

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