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Indicators to determine whether parties are in a de facto relationship in estate disputes

He was not my mum’s de facto partner; he slept on the couch! Indicators to determine whether parties are in a de facto relationship in estate disputes.

More middle-aged and older Australians re-partner in later life, setting up increasing disputes between the children of an earlier relationship and the de facto partner as each battle for a share of the deceased partner’s estate.

In a deceased estate matter in the Supreme Court of Western Australia, the children of the deceased and the de facto partner were locked in dispute. The de facto partner alleged he was in a de facto relationship with the deceased and entitled to make a claim against the deceased estate. The children disputed this claim. During the hearing, the claimant alleged he shared a bedroom with the deceased while a witness alleged that he had slept on the couch. The Supreme Court rejected the witness’s evidence stating that the claimant would not have slept on a couch in the deceased’s home for 13 years when he had his own property. Sleeping and living arrangements form one but not the sole determinative factor in determining whether the parties were in a de facto relationship.

De Facto Partners and Claims to a Deceased Estate

We will explore the criteria to determine a de facto relationship but first, note that whether parties were in a de facto relationship is important for 2 reasons: –

  • If the deceased had left a will but did not make any gift to the de facto partner or had made an inadequate gift to the de facto partner, then the de facto partner is a person who is entitled to make a claim against the deceased estate under the Family Provision Act 1972 (WA). Whether such a claim succeeds will depend on the facts of the case.
  • If the deceased did not leave a will and dies with a de facto partner but no married spouse, then where the de facto partner lived with the deceased for at least 2 years, the de facto partner would be entitled to share in the deceased estate in the same way as a married spouse would have been entitled. Under the Administration Act 1903 (WA), such de facto partner is entitled to the first $472,000 and one-third of the balance of the estate while the children would share equally in the balance two-thirds of the estate. Where a deceased leaves both a married spouse and a de facto partner, that de facto partner may also, in certain circumstances, be entitled to share in the deceased estate under the Administration Act 1903 (WA). A de facto partner could also claim for further provision if the entitlement to the first $472,000 and balance one-third does not amount to a proper and adequate provision in all circumstances of the case.

If you are or were in a de facto relationship or involved in a dispute with an alleged de facto partner of the deceased, it is important that you obtain legal advice on your entitlements and rights. As deceased estate claims are subject to short limitation periods, it is imperative that you seek legal advice as soon as possible.

To determine whether parties are married, the criteria is objective – whether parties hold a marriage certificate. Regardless of the quality of the marital relationship or whether parties are living together, the sole question to determine whether parties are married is whether they hold a marriage certificate. The end of the marriage can also be objectively determined – when the Family Court issues a grant of divorce.

In the case of a de facto relationship, the assessment is subjective. Section 13A of the Interpretation Act 1984 (WA) provides that a de facto relationship shall be construed as a relationship between 2 persons who live together in a “marriage like relationship”. Section 13A goes on to state that the following are indicators but are not essential: –

  • the length of the relationship between them;
  • whether the 2 persons have resided together;
  • the nature and extent of common residence;
  • whether there is, or has been, a sexual relationship between them;
  • the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  • the ownership, use and acquisition of their property (including property they own individually);
  • the degree of mutual commitment by them to a shared life;
  • whether they care for and support children;
  • the reputation, and public aspects, of the relationship between them.

The Supreme Court of Western Australia has found that the above definition puts great emphasis on the parties residing together and their living arrangements. Interestingly, the Supreme Court found that the above definition does not reference to anything like love and affection.

With legal marriages covering a broad spectrum from where married couples live in a loving relationship with shared finances to those where domestic abuse may pervade from day one of the marriage and to marriages where parties maintain separate finance, judges have long lamented on the difficulties in determining whether a de facto relationship exists based on the legislative criteria of a “marriage like relationship”. After exploring the diversity of marriages, Thackray CJ in Truman v Clifton [2010] FCWA 91 opined, “How then is a judge expected to decide whether a relationship between a man and a woman (or indeed under this legislation same-sex couples) is ‘marriage-like’ in circumstances where married couples straddle the spectrum from the deliriously happy to the homicidally estranged?”

At the end of the day, to determine whether parties are in a de facto relationship requires an overall assessment of the facts and all the relevant elements of the relationship including having regard to the indicators set out in Section 13A Interpretation Act 1984 (WA).

If you require advice on estate claims involving a de facto relationship, please contact Robertson Hayles Lawyers at 9325  1700 or by email at


The above content is only intended to provide a general overview of the topic discussed. It is not intended to be comprehensive, nor does it constitute legal advice. You should seek legal advice specific to your circumstances before acting or relying on any of the above content.