Do you have the same rights as people who are married? For example, do you have the right to:

  1. Receive a share of an estate if your partner has died without making a Will (intestate)?
  2. Challenge a Will if your partner has not made adequate provision for you?
  3. Claim damages or compensation if your partner’s death was caused by a criminal or negligent act or during the course of their employment?
  4. Claim State superannuation death benefits?

The short answer is, yes, but…

If you have lived with your partner for two years, registered your relationship as a de facto relationship with the appropriate government department, or had one or more children together, you are in a ‘de facto’ relationship for family law purposes.

But when it comes to challenging a Will, claiming a share of a deceased estate, claiming State superannuation death benefits, or claiming compensation or damages as a result of your de facto partner’s death, you must be able to establish that the deceased was your domestic partner.

The law has defined what it means to be a ‘domestic partner’ [1]. You are a domestic partner if you are in a close personal relationship with a person. A close personal relationship exists if two adults (whether or not they are related by family and irrespective of gender) live together as a couple on a genuine domestic basis for at least three years, or over a period of four years for periods totaling three years or have had a child together. This does not include situations where ‘care’ is provided by one person for a fee.

If your relationship is unregistered and you wish to make one or more of the above claims, you may have to obtain a declaration from the Court recognising your relationship as a domestic partnership. Section 11B of the Family Relationships Act 1975 (SA) sets out what factors the Court will consider, including:

  • The duration of the relationship;
  • Whether you lived together;
  • Whether a sexual relationship existed;
  • The nature of your financial relationship;
  • How property was owned, used and acquired;
  • Whether you were both committed to a shared life;
  • If you had children;
  • Who performed household duties; and
  • Whether other people thought you were in a de facto relationship.

Your application for the declaration must be supported by an affidavit containing the names and addresses of anyone whose interests may be affected by the declaration[2] and served on all those persons.[3]

So, if you want to make sure your de facto partner is looked after when you are gone, consider registering your de facto relationship (in S.A. this is done with Consumer and Business Services) and getting your estate planning in order – make a Will and a binding nomination for your superannuation.

On the other hand, if you are not in a de facto relationship, make sure your estate planning reflects this as well. Don’t refer to a ‘special’ friend as your de facto on official documentation or even on Facebook! When making your Will that excludes someone, consider also making a statutory declaration describing the nature of your relationship. This will provide a Court with some valuable guidance and insight as to how you viewed the relationship.

How we can help

If you were in a de facto relationship and you wish to participate in or make a claim on your deceased partner’s estate, we can advise you about your claim. If you wish to ensure your estate planning minimises the risk of family provisions claims, we can advise you about the best way to protect your assets.

Call us 1300 654 590 for a no-obligation chat with a lawyer.

[1] Section 11A of the Family Relationships Act 1975 (Cth).

[2] Magistrates Court (Civil) Rules 37(7).

[3] Ibid r 37(8).