In this information sheet, we explain how a de facto relationship is proven when the spouse dies without a valid Will.
De facto partners have the same entitlements as legally married spouses under the Estate of a person who died with no Will (Intestacy). However, it is necessary to prove that the de facto relationship existed at the date of death and that it had been in existence for at least two years.
Under Section 104 of the Succession Act 2006 (“The Act”) a spouse includes both a person to whom the deceased was married at the date of death and a person with whom the deceased was in a de facto relationship at the date of death.
Section 32G of the Act defines a de facto spouse, in relation to a person dying intestate, as someone who was a partner in a de facto relationship with the person.
Section 21C of the Interpretation Act 1987 provides:
“A person is in a de facto relationship if-
(a) They have a relationship as a couple living together, and
(b) They are not married to one another or related by family.”
In Simonis v Perpetual Trustee Co Ltd (1987) 21 NSWLR 677; Supreme Court Judge, Kearney J considered the relevant factors in determining whether a de facto relationship exists. His Honour considered the approach adopted by Powell J in Waterford v Director General of Social Services (1980) 49 FLR 98 including:
1. The duration of the relationship;
2. The nature and extent of the common residence;
3. Whether or not a sexual relationship existed;
4. The degree of financial interdependence, and any arrangements for support, between or by the parties;
5. The ownership, use and acquisition of property;
6. The procreation of children;
7. The care and support of children;
8. The performance of household duties;
9. The degree of mutual commitment and mutual support; and
10. Reputation and ‘public’ aspects of the relationship.
Whilst it is recognised that the Court will decide each case on its own merits and the factors listed are not exclusive in determining if a de facto relationship existed, it does provide guidance as to what needs to be proven to establish a de facto relationship.
It is not sufficient to simply state that the relationship existed. Evidence must be given, usually in the form of a sworn deposition (called an affidavit). Documentary evidence of shared bank accounts, utility invoices and any other documents which will establish commitment to a shared life will be extremely useful.
The affidavit should provide details relating to the factors set out in Simonis including the duration of the relationship, the shared residence, the performance of household and domestic duties, a sexual relationship, social recognition of the relationship, children and the shared caring requirements of the children.
This depends both on the size of the estate and whether the deceased had children.
Under Section 111 of The Act, the spouse (de facto partner is entitled to the whole of the estate where the deceased left no surviving children.
Where the deceased died leaving children who were also children of the spouse, the spouse is entitled to the whole of the estate under Section 112 of The Act.
Section 113 of the Act provides that if the deceased died leaving a child who was not also a child of the spouse, the spouse will receive:
· The intestate’s personal effects;
· A statutory legacy (currently approximately $476,000); and
· One-half of the remainder of the estate.
If your loved one has died without a will and you need advice on your entitlements, please call us today or book an appointment online to speak with our friendly team.