Can a De Facto Relationship Exist While Living Apart?
- Justeen Dormer
- Aug 29, 2023
- 6 min read
Updated: 6 hours ago
Wills and Estates
Yes, you can be in a de facto relationship in NSW even if you and your partner live in separate houses. The law in NSW looks at the complete picture of your relationship, not just whether you share an address. For matters like inheritance and estate claims, what counts is the nature of your commitment, financial ties, and how you present yourselves to the public.
Many people assume that to be considered a de facto couple, you must live together. In NSW, the law is more flexible and recognises that modern relationships do not always follow a traditional path. You can be in a genuine, committed de facto relationship while maintaining separate residences.
Understanding your legal standing as a de facto partner is essential, especially when it comes to making a will, estate planning, and your rights if a partner passes away. This article explains how a de facto relationship is defined in NSW, the factors courts consider when partners live apart, and what it means for your future.
How NSW Law Defines De Facto Relationships
In Australia, the definition of a de facto relationship is handled by different laws depending on the situation. For property settlements after a breakup, the Family Law Act 1975 (Cth) applies.
However, for issues related to wills and estates in New South Wales, the key piece of legislation is the Succession Act 2006 (NSW). This Act defines a de facto relationship as one between two people who, while not married, live together on a "genuine domestic basis."
Crucially, "living together" is interpreted broadly. A court will assess all the circumstances of your relationship to determine if it qualifies. You do not need to share the same home 24/7 to meet the legal test.
How to Prove a De Facto Relationship When Living in Separate Houses
When a couple lives apart, a NSW court will look for other clear signs of a genuine relationship. No single factor decides the issue; instead, the court evaluates the relationship as a whole to determine if it meets the threshold.
Key indicators that help establish your de facto status include:
The duration of the relationship: A relationship of at least two years is a strong indicator. Shorter relationships may qualify if there is a child, or if one partner has made significant contributions to the other's welfare.
The nature of a common residence: Even if you have separate houses, do you spend considerable time at each other’s homes? Do you keep personal belongings at your partner's property?
The degree of financial dependence or interdependence: Do you have joint bank accounts? Do you share bills or provide financial support to one another? Owning property or a car together is powerful evidence.
The degree of mutual commitment to a shared life: Do you have plans for the future together? Do you provide emotional support for each other, especially during difficult times?
The existence of a sexual relationship: While this is a relevant factor, its absence does not automatically mean a de facto relationship does not exist.
The care and support of children: How you co-parent and support any children you have together is a significant consideration.
The public reputation of the relationship: Are you known as a couple among your friends, family, and community? Do you attend social events together and refer to each other as partners?
The combination of these factors is what builds a strong case for a de facto relationship in NSW, even without a shared address.
Evidence of a De Facto Relationship in NSW
If you are in a de facto relationship but live separately, it is wise to collect evidence that proves your connection. This documentation is vital to protect your de facto rights and can simplify legal processes related to wills and estates.
Consider gathering the following evidence of your de facto relationship in NSW:
Financial Records
Statements from any joint bank accounts
Proof of one partner being a beneficiary on the other’s health insurance or superannuation
Records of joint purchases, like a car, holidays, or major appliances
Evidence of regular financial support or money transfers between you
Household Contributions
Receipts for shared expenses, even for separate properties (e.g., contributing to a utility bill)
Mail addressed to you both at one of the properties
Social Recognition
Invitations, photos, and social media posts that present you as a couple
Statutory declarations or letters from friends and family confirming your relationship
Commitment
Emails or text messages that show you are planning a future together
Naming each other as your emergency contact
Having this information organised can provide crucial support if you ever need to formally prove your relationship status.
The NSW Relationship Register
For added certainty, couples in NSW can register their relationship under the Relationships Register Act 2010 (NSW). Registering provides conclusive proof of the existence of your relationship for the purposes of NSW law. This means that if you need to assert your rights under the Succession Act, your registered relationship is automatically recognised without needing to provide further evidence.
Registration is a straightforward process managed by NSW Births, Deaths & Marriages. It can be a very powerful tool for couples living apart.
Why Your De Facto Status Matters for Wills and Estates in NSW
Your de facto status has major implications for your estate plan. If you die without a valid will (known as dying 'intestate'), the law dictates how your assets are distributed. Under the Succession Act 2006 (NSW), a recognised de facto partner has the same inheritance rights as a married spouse.
However, if your relationship is not registered, your surviving partner may need to prove the relationship to the court. This can be a stressful and costly process, especially if other family members challenge the relationship's validity.
Superannuation and Death Benefits
De facto partners are generally considered 'dependants' under superannuation law. This means you can be nominated to receive your partner's superannuation and any associated life insurance payouts. If you are not formally nominated, you may still claim the benefit, but you will need to provide evidence of your relationship to the super fund trustee to prove your dependency.
Next-of-Kin Rights in NSW
As a de facto partner, you are generally recognised as the legal next-of-kin. This gives you rights in medical situations and end-of-life planning. An Enduring Guardianship appointment allows you to make health and lifestyle decisions if your partner loses capacity, while an Advance Care Directive outlines their wishes for medical treatment. Without these documents, your authority could be questioned.
Protect Your Partner with Clear Estate Planning
Leaving your de facto relationship undocumented creates unnecessary risk and uncertainty. Your partner could be left out of your estate, face a difficult claim for superannuation, or be challenged by family members.
The most effective way to protect your partner is to formalise your wishes through proper NSW estate planning. Key steps include:
Making a Valid Will: A will clearly states your intentions and ensures your partner is provided for as you wish.
Updating Superannuation Nominations: Make a binding death benefit nomination to direct your super fund to pay the benefit to your partner.
Appointing an Enduring Power of Attorney: This allows your partner to legally manage your financial affairs if you lose capacity.
Appointing an Enduring Guardian: This empowers your partner to make healthcare and lifestyle decisions on your behalf.
Taking these steps provides security for your partner, no matter your living arrangements. If you need to make a claim on a deceased estate, be aware that in NSW, a family provision claim must generally be filed within 12 months of the date of death.
We Are Here to Guide You
Navigating the complexities of de facto relationships and NSW estate law can be difficult. You do not have to do it alone. Our experienced team offers clear, compassionate guidance to help you understand your rights and protect your loved ones.
Whether you need to update your will, formalise your estate plan, or want clarity on where you stand, we are here to support you.
Book a free, no-obligation consultation with our team today to secure your future and gain peace of mind.
Get in touch with Dormer Stanhope for guidance on this important area of law. For more insight into your rights as a de-facto partner, contact our team on 1800 571 113.
