To the Bitter End: What Amounts to an ‘Ending’ of a De Facto Relationship (and its impact in a Wills & Estate Context)

In Australia, de facto relationships are increasingly common. One in seven Australian adults are in a de facto relationship, and the rate of marriage continues to decline. But while entering a de facto relationship may happen without any formal legal steps or ceremony, the ‘ending’ of a de facto relationship (especially in a legal context) is anything but simple.

When a de facto relationship ends, the consequences extend far beyond the emotional or financial. In the estate planning and administration context, the legal status of that relationship at the time of death can determine whether someone inherits under a will or on intestacy, qualifies to claim superannuation death benefits and life insurance, is a beneficiary or controller of a trust, or has standing to bring a claim under family provision legislation.

For couples who were married, the divorce certificate provides evidence of the end of the parties’ legal relationship as spouses. However, for parties in a de facto relationship, the end is usually not so clean cut nor as easy to prove. This article explores how the law determines whether a de facto relationship has ended, and why timing and clarity matter more than many realise.

Can’t we just do the same thing? The many, many, many terms and tests for de facto relationships!

Estate laws differ greatly from jurisdiction to jurisdiction, and although the term ‘spouse’ may be simple to understand, it is not the same for the term ‘de facto’. Different definitions of de facto relationships and domestic relationships appear in a myriad of legislative provisions, and each Australian jurisdiction has adopted its own definition/test! Some favour the term ‘de facto’ while others use different terms such as ‘domestic partner’ or ‘significant relationship’.1 For ease of reference throughout the balance of this article, unless specifically referring to a relevant jurisdiction, the term ‘de facto relationship’ and ‘de facto partner’ will be used.

How Do You Prove a De Facto Relationship Has Ended?
Unlike marriage, which is dissolved by divorce, there is no single legal mechanism for ending a de facto relationship. The Family Law Act 1975 (Cth) (“the Family Law Act”), and many state-based laws, are silent on exactly how a de facto relationship ends. Instead, courts assess all the circumstances to determine if the mutual commitment to a shared life has ceased.

In Fairbairn v Radecki [2022] HCA 18, the High Court stated that in determining whether a de facto relationship continued to exist meant considering whether ‘necessary or desirable adjustments’ were being made by the couple to allow the continuing of their shared life, explaining that:

“if one party fundamentally acts contrary to the interests of the other in relation to the property of the couple, it may be possible to conclude that the mutual commitment to a shared life has ceased” and ‘a de facto relationship may continue even though the parties physically reside at different locations, and despite one of those parties suffering from (severe) illness’.

The Court went on to explain that the following factors were relevant when determining whether there was a ‘commitment to a shared life together’:

• the conduct and adjustments (or lack thereof) made by each party to maintain the relationship;
• the mental state or intention of the parties to continue the relationship;
• the living arrangements, including whether the couple continued to cohabit or maintain intimacy; and
• broader relationship factors under s 4AA(2) of the Family Law Act, including finances, children, property, and public perception.

Why does the end of a de facto relationship matter?
When a de facto relationship ends, in a wills & estate context, its impact can be profound:

Wills: In all states and territories other than Queensland, the ‘ending of a de facto relationship’ will not necessarily have any impact on a person’s will. In Queensland, s15B of the Succession Act 1981 (Qld) provides that, unless there is an express contrary intention in the will, the ending of a de facto relationship revokes certain parts of a person’s will.

Recommendation: both parties should review and update their wills to reflect any change in their wishes.

Intestacy: The ending of a de facto relationship has the effect of disentitling the parties to any rights upon intestacy. That is, once a de facto relationship has ended, the parties are no longer eligible under the various intestacy laws in Australia.2

Recommendation: both parties should put a will in place to ensure their wishes are enforced.

Trusts: Unless the trust deed provides otherwise, the ending of a de facto relationship:

• may remove rights tied to that status (e.g. as a “spouse” which may be defined to include a de facto partner); and
• may not remove/revoke rights held via an express appointment (either as a controller or beneficiary) or accrued entitlements.

Recommendation: all trusts deeds and exercises of powers of appointments are reviewed and updated to (where possible) reflect any change in wishes.

Family Law Proceedings: The ending of a de facto relationship has significant implications for the parties in terms of their entitlement to commence or continue family law proceedings under the Family Law Act: