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How does the Court determine whether someone was living in a de facto relationship with the deceased person?

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For a person to bring themselves within the meaning of a de facto spouse for the purpose of a family provision application they must establish that they were the deceased de facto partner as at the date of death. Estate Litigation Senior Associate, Lucy McPherson, discusses these issues.

In determining whether two people have a relationship as a de facto couple, all the circumstances of the relationship are taken into account including:

a) the duration or length of the relationship;
b) the nature and extent of their common residence;
c) whether or not a sexual relationship existed;
d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
e) the ownership, use and acquisition of property;
f) the degree of mutual commitment to a shared life;
g) the care and support of children;
h) the performance of household duties;
i) the reputation and public aspects of the relationship.

No finding in respect of any of the matters above is to be regarded as necessary for the existence of a de facto relationship; and further, a Court determining whether a de facto relationship exists is to have regard to all the circumstances of the relationship and is entitled to have regard to such matters and to attach such weight to any such matter as may seem appropriate to the Court in the circumstances.

In Queensland, there is an additional requirement. That is, the person must demonstrate they lived with the deceased person as a couple on a genuine domestic basis for a continuous period of at least two years ending on the deceased person’s death.

Some of the matters taken into account by a Court involve public aspects of the relationship and other private aspects. The existence of such relationship will be decided on an evaluative assessment of fact.

If you require any advice on estate litigation matters, please contact our office any time with enquiries. Contact our Estate Litigation Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071. We have a dedicated Estate Litigation team that practice exclusively in this complicated area.

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Lucy McPherson

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