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De facto relationships and the law: Estates, disputes and superannuation

By Margaret Arthur / 06 June 2023
3 min.
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Are you, or were you, in a de facto relationship? 

When someone dies, the question often becomes − was I in a de facto relationship?

For many people, some elements of a de facto relationship exist, but not all. That can make it hard to definitively say there is/was a de facto relationship in existence. Lawyers can then resort to their typically evasive response – ‘it depends’.

A major problem with a de facto relationship is that, sometimes, it can be hard to say when it started and equally hard to say when it ended. Unlike a marriage, it has no certificate to evidence the start date. And sometimes, when legal issues erupt, the start and end point can become very important. 

The question is becoming more and more relevant given the increasing numbers of these relationships, especially in relation to disputes over deceased estates and disputes over superannuation.

For example, if a client needs advice in relation to whether they are entitled to financial provision from the estate of a deceased person (known as a family provision claim), whether the client was in a de facto relationship with the deceased can determine whether they can make a family provision claim or not.

In a recent Supreme Court of Queensland decision, the dispute centered on whether W and L were in a de facto relationship at the time that L died.

There was no dispute that the couple had resided together at the one property from 2011 until the time of L’s death in 2020. But the question was whether the relationship had ended a few days before L’s death. Answering that question entailed the court hearing a great deal of personal information and evidence from W, and others who were close to the couple. These types of cases can involve a close scrutiny of very intimate details of people’s lives and this case was no different in that respect.

The evidence given in this case highlighted how complex it can be to try to pinpoint the nature of a relationship and to also identify as to when a relationship has come to an end and/or is going through a period in which the parties are having a short break from the relationship.

In concluding that the de facto relationship had ended, the judge said: “A short-term breakup does not mean that the de facto relationship would not continue. The difficulty for W is that there is no evidence to suggest that the breakup was to be a short-term breakup. The evidence is to the contrary.”

This case demonstrates just how difficult it can be in, certain situations, to say affirmatively whether there is/was a de facto relationship or not. 

Proving or disproving the existence of the relationship can create a legal hurdle that doesn’t exist for married spouses. For some, getting over that hurdle can be a very painful exercise.

If you would like to know where you stand in terms of an estate dispute, whether it is one involving a family provision claim or other issues, reach out to Margaret Arthur in HopgoodGanim’s Estate and Succession team. She can assist you with advice in relation to disputes over deceased estates, estate planning, succession and elder law matters. 

06 June 2023
Key Contacts
Margaret Arthur
Special Counsel
Margaret is a Special Counsel with HopgoodGanim Lawyers and specialises in the area of Succession law and Elder Law.

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