One of the three main categories of people eligible to challenge a will or seek further provision from an estate in New South Wales are de factos. Hi, I’m Nicholas Rose, one of the solicitors here at Turnbull Hill Lawyers in the Contested Estates team, and I’m here to give you the facts on de factos.

The hardest part for us lawyers, and the rest of the world, is working out whether a person claiming to be a de facto actually is one and, more importantly, whether they were one at the date of death.

Some lawyers will advise that to determine whether someone is a de facto, there’s just nine considerations in the Interpretation Act. This is not strictly true. The section that they’re referring to actually states all circumstances of the relationship are to be taken into account, and it also clarifies further that no particular finding regarding those nine considerations is absolutely necessary to prove whether two people were in a de facto relationship. So this is not a box-ticking exercise.

Nevertheless, the considerations under that section are:

(a) The duration of the relationship; how long have they been keeping company? Pretty straightforward.

(b) The nature and extent of common residence. Do they live together?

The next consideration in (c) is whether or not a sexual relationship existed. Just because you’re practicing procreation occasionally, this does not make you a de facto. At the same time, the lack of the “no pants dance” does not disprove a de facto relationship. And I’ll explain why in a minute.

The next consideration (d) is the degree of financial dependence or interdependence and any arrangements for financial support between the parties. So are they buying things for each other? Paying bills, getting gifts, that sort of stuff.

The next consideration (e) is the ownership, use, or acquisition of property together. This isn’t just houses. We’re talking about cars, boats, dogs, racehorses, any kind of property that they co-own. What’s the extent of that?

The next consideration in (f) is the degree of mutual commitment to a shared life. This is perhaps the most underrated consideration because it is, to use the legal term, a bit wishy-washy. However, love letters, promises, screenshots of Facebook messages, all that sort of stuff can indicate commitment together. The word mutual in that particular consideration, though, is really interesting and a developing area of law with our current understanding of how coercive control and domestic violence applies.

The next consideration in (g) is the care and support of children. If you have children together, big chance you’re a de facto, it’s a bit of a giveaway. In fact, in intestacy, where there is no will, a former de facto who had a child with the deceased is automatically entitled to be considered equivalent to a spouse so they could receive the entire estate in some circumstances. If you separate, get a will. The next consideration in (h) is the performance of household duties. Boy, does this become an issue for the court when someone moves in as a live-in carer for elderly persons. But it’s essentially, are you doing stuff around the house together?

The next consideration (i), and this is the important one: The reputation and public aspects of the relationship. Essentially, are they Facebook official? Do they go to family events together, holding hands? Are they on holiday together? Do they represent all the people that they are in a relationship? In a case from 2020, Indjic v Stojanovic, the judge presiding, Justice Hallan, said that all of these considerations suggest a continuing course of behavior and not an event at a fixed point in time.

Unlike a legal marriage, a de facto relationship only exists as long as it has that marriage-like character. When a party to a de facto relationship determines they do not wish the relationship to be marriage-like anymore and leaves, that’s it, it’s at an end.

In summary, de factos are not just the boyfriends and girlfriends or a rebound after a marriage breakdown. A de facto relationship has to be proven by way of a genuine commitment to a relationship that is in the eyes of at least some judges, equivalent to marriage in all respects, except that formal certificate. It does not matter that they were not having sex if they were otherwise clearly committed to caring for one another and sharing their life and assets.

What matters is whether when all the facts and put before the court, the court believes, one, that the relationship was genuine and marriage-like enough to indicate a shared commitment to life. That it was two, mutual in its commitment and not imposed upon one or only felt by one party. And three, that neither party stated the relationship was over before the deceased died. It also can’t be a relationship that was entered into in exchange for monetary benefit. So the professional mistresses, boy toys, and paramours, they’re way out of the picture.

Finally, it is the worst-kept secret of certain generations in Australia that they are 100% absolutely not, definitely not, de facto… if the person asking is from Centrelink or the Tax Office. We’ve acted for plenty of lodgers and carers that were in fact dearly loved by their partner who just never happened to get around to making a will before they passed away, and it happens far too often.

Any declaration to the government that affects pensions or taxes is really decisive evidence. If you’re a de facto left out of a will or an executor dealing with someone who’s claiming to be a de facto and you do not believe that, call us. There’s no question too awkward.

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