By Olivia Burgess, Paralegal

As the statistics show the increase of de facto relationships, it is important for de facto couples to be aware of their rights and obligations, not just in a family law property settlement but also in respect of succession law and in particular, a challenge to a Will where an individual did not receive any or prior provision (known as a family provision claim). Family Law is covered by Federal legislation while succession (i.e. wills and estates) law is governed by State legislation and so the laws in that respect differ between the Australian States and Territories.

What is a de facto?

Section 105 of the Succession Act 2006 (NSW) includes de facto relationships as a category of domestic partnership, and defined as being “in existence for a continuous period of 2 years, or has resulted in the birth of a child”. There is a variety of relevant factors outlined in Section 21C of the Interpretation Act 1987 to take into account when assessing the existence of a de facto relationship, such as its duration, the existence of a sexual relationship, and the reputation and public aspects of the relationship. The subjective and unique nature of relationships means that no one of these factors outweighs another, with Powell J in Roy v Sturgeon noting that the factors which distinguish a relationship as being de facto “differs from case to case”. Kearny K in Light v Anderson went on to say that such relationships should be analysed as a whole rather than dissected for their parts.

Change in the Law

In 1983 a Law Reform Commission Report was conducted in NSW on De Facto Relationships, which made many recommendations which would later be adopted into NSW law. When the Report was written, de facto partners had no entitlement to make a claim on their deceased partner’s estate where provision had not been adequately made. It was noted in the Report that the laws which govern intestacy must “reflect community views as to the way in which a deceased person’s property should be distributed”. The law was subsequently changed and, as such, de facto partners are now considered a class of persons eligible to make Family Provision claims and be considered as a legitimate form of domestic partnership under Succession Law.

If you would like further information about rights as a partner of a de facto couple under Succession Law, and the implications this may have upon your Will and other Succession plans, the Family Law team at Mills Oakley are highly qualified to assist you.