When it comes to identifying a couple's de facto marital status under law, it's important to consider the time they have spent living together - particularly in the case of separation, or disputes over a will.

One of the legal requirements for two people to be regarded as a de facto couple, as stated in of the NSW Interpretation Act 1987 is that they have "a relationship as a couple living together" and they are "not married to one another or related by family".

Several factors used to define de facto marital status

Section 21C(3) of the Interpretation Act says other factors can be taken into account when determining a de facto relationship. These include duration and extent of the relationship, whether sex is involved, financial dependence, owning property, care of children, sharing household duties and whether others see them as a couple.

Under section 4 of the NSW Property (Relationships) Act 1984, if two people do not live together, they do not satisfy the definition of being in a de facto relationship. (Please see Is a de facto relationship the same as marriage?)

Ascertaining whether de facto relationship existed if deceased leaves no will

In a case heard in the NSW Supreme Court in 2019, a man claimed to be the de facto spouse of a woman who died intestate, leaving a $3.2 million estate. She had no living children, but several of her nephews and nieces were seeking a share of the estate. (See Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney (No 2) [2019] NSWSC1832.)

The man divided his time between the woman's house in Sydney and a country property where he spent about 55 per cent of his time. As the woman left no will, the question was whether the man could claim de facto marital status if the couple did not live together all the time.

The case was also complicated by the fact that the man had previously had a de facto relationship with the woman's daughter. He said that after the daughter died, a relationship grew with the mother and they then became a de facto couple.

Can two people living together part-time be in a de facto relationship?

The NSW Succession Act 2006 says two people have de facto marital status if they have a relationship as a couple living together for two years.

But how much of the time does a couple need to spend living together to be legally considered to be in a de facto relationship?

Earlier courts have ruled that a couple were de facto even if they lived together only on weekends, went on holidays together, saw each other several times during the week, phoned every evening and cared for each other during illness.

De facto marital status implies mutual commitment to shared life

In this case, the judge found "there was a very high degree of mutual commitment to a shared life" between the couple and ruled they were in a de facto relationship.

Following section 111 of the Succession Act, which says that if there is no issue (ie no children), the spouse is entitled to the whole of the intestate estate, the man was granted the entire inheritance.

Anneka Frayne
De facto relationships
Stacks Law Firm

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.