Many people assume that just because you are not married to your partner, there are no impacts to your Will, should you separate in the future.

Unfortunately, this assumption is incorrect.

What constitutes a de facto relationship?

A de facto relationship is where a couple, of the same or opposite sex and who are not legally married, live together in a genuine domestic relationship for a period of two years.

There is no hard and fast rule to determine whether a couple have been living together on a genuine domestic basis. 

Rather, a court takes into consideration a number of circumstances outlined in section 32DA of the Acts Interpretation Act 1954 (QLD).

The existence of a de facto relationship is sometimes difficult to determine and may have significant impact if not properly addressed in your estate plan.

What if I have separated from my de facto partner? 

The Succession Act 1981 (Qld) (Act) describes a former de facto partner as “the person who was the de facto partner of the testator (i.e., Will maker) immediately before the ending of the testator’s de facto relationship.”

In Queensland, amendments to the Act which came into effect in June 2017, mean that the end of a de facto relationship has the same effect as a divorce on a Will.

Under section 15B of the Act, unless a contrary intention appears in the Will, the end of de facto relationship will revoke the following:

• any distribution to a former de facto partner;
• appointment of a former de facto partner as executor, trustee or guardian; and
• the grant of a power of appointment (in relation to a trust) in favour of a former de facto partner.

What does this mean for me?

If you have made a Will that does any of the above, and you have since separated from your de facto partner, it is important to update your Will to account for your new circumstances before you die.

Otherwise, you run the risk of your Will being partially revoked and not accurately reflecting your wishes.

Can my former de facto partner make a claim against my estate?

The following people are entitled to bring a family provision application against your estate, if they feel they have not been adequately provided for:

• spouse (including de facto spouse);
• children (including stepchildren); or
• dependants.

This means that if you have separated before your death, your former de facto partner will not be considered eligible to bring a family provision application against your estate.

In Queensland, although a former de facto partner is not expressly listed as an eligible applicant, the Act still provides that certain ‘dependants’ of the deceased may be eligible persons.

A ‘dependant’ is a person who was being wholly or substantially maintained or supported by the deceased person at the time of his or her death. This includes the parent of a surviving child under the age of 18 years, who is also a child of the deceased.

Therefore, a former de facto partner could potentially fall into the category of an eligible persons as a ‘dependent’.

Accordingly, it is important to keep accurate records of your relationships regarding matters such as dates of living together, joint and individual property and how income is used between you and your de facto partner.

Is there a difference between a de facto partner and civil partner?

In Queensland, you can register a de facto relationship through the Registry of Birth Death and Marriages, a process which results in a civil partnership. This can be done as a sign of commitment or for couples who do not wish to get married but want legal acknowledgement of their relationship. 

However, a registered relationship is not the same as a marriage. A civil partnership ends if either party marries or passes away.   

Under section 5AA(2)(c) of the Act, a deceased’s dependent former husband or wife or civil partner is noted within the definition of ‘spouse’.  

Therefore, a dependent former civil partner will be considered an eligible person to make a claim against your estate.

Can my de facto (or civil) partner’s children contest my Will?

Another way in which a de facto/ civil relationship is treated the same as a marriage, is in relation to the treatment of stepchildren.

If your de facto partner (or civil partner) has children from a previous relationship, they will be considered your stepchildren for the purposes of making a claim against your estate.

This means that a de facto (or civil) stepchild is just as entitled to make a claim for provision from your estate as a biological child – provided that they can show that their parent was still in a de facto relationship with the deceased stepparent at the time of death.

What should I do if my relationship changes?

Whether it is the start or end of a relationship, it is important to seek advice on how these changes may affect your Will and how to minimises the potential for any future disputes and claims to your estate.

If you have any questions surrounding how your current relationship status may affect your Will, or need help updating your estate plan, please feel free to contact us.