By Jennifer Vuu -
Snapshot
- Deceased estates often involve disputes where a person claims to be the de facto spouse of the deceased.
- Costly and lengthy litigation can ensue in cases where such a claim is met with resistance from the legal personal representative of the estate or beneficiaries who otherwise stand to inherit.
- Determining the existence of a de facto relationship is a complex exercise.
The definition of a de facto relationship is where two persons have a relationship as a couple living together and are not married to one another or related by family (Interpretation Act 1987 (NSW), s 21C(2)) (‘Interpretation Act’). A de facto relationship can exist between persons of the same sex or different sex (s 21C(1)). It can also exist even if one person is legally married to another person or in a registered relationship with someone else (s 21C(2)).
Determining the existence of a de facto relationship is a complex exercise. It requires all the circumstances of the relationship to be taken into account. This includes matters such as the duration of the relationship, nature and extent of a common residence, whether there is a sexual relationship, the degree of financial dependence, mutual commitment to a shared life and the public aspects of the relationship (s 21C(3)).
The statutory criteria for the determination of a relationship as a couple is neither exhaustive nor definitive (Sadiq v NSW Trustee & Guardian [2015] NSWSC 716 at [197] (‘Sadiq v NSWTAG 2015’); Sadiq v NSW Trustee and Guardian [2016] NSWCA 62; Piras v Egan [2008] NSWCA 59 at [146] (‘Piras v Egan’)). No particular finding in relation to any of the matters set out in the statutory criteria carries decisive significance.
