De Facto Relationships & Same Sex Marriage

Home » De Facto Relationships & Same Sex Marriage

De Facto Relationships – Will Disputes & Family Provision Claims In NSW

This page provides details regarding the de facto and same sex relationships within the area of Family Provision Application
De Facto Relationships – Will Disputes & Family Provision
De Facto RelationshipsFactors in De Facto Relationships
De Facto Relationships
De Facto Relationships
  • Section 57(1)(b) of the Succession Act deals with De Facto Relationships that relate to will disputes.
  • Pursuant to section 21C Acts Interpretation Act a person is in a de facto relationship with another person if:
    • They have a relationship as a couple living together, and
    • They are not married to one another or related by family.
  • A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else
  • In determining whether there is a de facto relationship as a couple the following matters must be taken into account but it is not necessary to establish all these matters:
    • The duration of the relationship
    • The nature and extent of their common residence
    • Whether a sexual relationship existed
    • The degree of financial dependence or inter-dependence and any arrangements for financial support
    • The ownership, use and acquisition of property
    • The degree of mutual commitment to a shared life
    • The care and support of children
    • The performance of household duties
    • The reputation and public aspect of the relationship.
    • Under the Succession Act De facto relationships are eligible persons and are able to make an application to contest the will pursuant to the ruling in Frisoli & Anor v Kourea (2013) NSWSC 116.
Legislation - De Facto Relationship

FAMILY LAW ACT 1975 – SECT 4AA

De facto relationships

Meaning of de facto relationship

(1)  A person is in a de facto relationship with another person if:

(a)  the persons are not legally married to each other; and

(b)  the persons are not related by family (see subsection (6)); and

(c)  having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Paragraph (c) has effect subject to subsection (5).

Working out if persons have a relationship as a couple

(2)  Those circumstances may include any or all of the following:

(a)  the duration of the relationship;

(b)  the nature and extent of their common residence;

(c)  whether a sexual relationship exists;

(d)  the degree of financial dependence or interdependence, and any arrangements for financial support, between them;

(e)  the ownership, use and acquisition of their property;

(f)  the degree of mutual commitment to a shared life;

(g)  whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

(h)  the care and support of children;

(i)  the reputation and public aspects of the relationship.

(3)  No particular finding in relation to any circumstance is to be regarded as necessary in deciding whether the persons have a de facto relationship.

(4)  A court determining whether a de facto relationship exists is entitled to have regard to such matters, and to attach such weight to any matter, as may seem appropriate to the court in the circumstances of the case.

(5)  For the purposes of this Act:

(a)  a de facto relationship can exist between 2 persons of different sexes and between 2 persons of the same sex; and

(b)  a de facto relationship can exist even if one of the persons is legally married to someone else or in another de facto relationship.

When 2 persons are related by family

(6)  For the purposes of subsection (1), 2 persons are related by family if:

(a)  one is the child (including an adopted child) of the other; or

(b)  one is another descendant of the other (even if the relationship between them is traced through an adoptive parent); or

(c)  they have a parent in common (who may be an adoptive parent of either or both of them).

For this purpose, disregard whether an adoption is declared void or has ceased to have effect.

A summary of the above information is as follows:

If there is a dispute about whether two people were in a de facto relationship, the Court will look at:

  1. the length of the relationship;
  2. the living arrangements;
  3. whether there is or was a sexual relationship;
  4. the way finances were arranged;
  5. whether you owned property together and how you bought it;
  6. whether your relationship was registered under state or territory law;
  7. whether you had or cared for children together; and
  8. the way you presented your relationship in public.

It is important to note that the Family Law Act recognises that an individual may be in multiple de facto relationships or that an individual who is married could also be a party to a de facto property proceeding (s 4AA (5)(b)). It is generally accepted that a de facto relationship exists if both individuals are living together for 2 years amongst other factors. However, if there is a child in that relationship then the 2-year period is overlooked.

New Law - Post 1 March 2009
  • De Facto Relationships have the same rights as a married couple under the Family Law Act 1975 in relation to the distribution of property.
  • Same-sex relationships are included in the de facto couple definition and as a result are entitled to the same rights to property.
  • If there is a child in the de facto relationships, then the Child Support (Assessment) Act also applies.
  • New laws in relation to the division of property for de facto relationships commenced on 1 March 2009.
  • The laws relate to de facto relationships that broke down on or after 1 March 2009 in NSW.
  • If the relationships broke down before the above date, then both individuals can apply to the Family Courts for a property settlement. This occurs if both parties obtain independent legal advice and the agreement is in writing and signed by both parties.
  • If you are in de facto relationship before 1 March 2009 and you separate after that date then you are entitled to claim and be eligible for a Family Provision Order.
Acts Interpretation Act - De Facto Relationship

In determining whether two persons are in a de facto relationship as a couple the following matters are to be taken into account under S21C(3) of the Interpretation Act:

  • The duration of the relationship
  • The nature and extent of their common residence
  • Whether a sexual relationship existed
  • The degree of financial dependence or inter-dependence and any arrangements for financial support
  • The ownership, use and acquisition of property
  • The degree of mutual commitment to a shared life
  • The care and support of children
  • The performance of household duties
  • The reputation and public aspect of the relationship.
Factors in De Facto Relationships
Assets brought in the relationship
  • If an individual who is in a de facto relationship and claims under Family Provision, it does not entitled that individual a right to seek property of the other party as a means of entitlement.
  • In determining whether orders should be made to divide property in a will dispute claim, the fact remains the same which is whether it provides adequate provision under Succession Laws, some factors that may be relevant:
    • All assets including superannuation and who brought which assets in the relationship;
    • The contribution towards the assets throughout the relationship, both financial and non-financial.
    • Time and length of the relationship and whether there is a child in the relationship.