Sydney Probate Lawyers

De-facto In Separate Houses!

Can you be in a De-facto relationship in separate houses?

The law of inheritance often looks at whether the deceased was in a de-facto relationship before they died. To be characterised as a de-facto relationship under intestacy, two people must have had a relationship as a couple living together for at least 2 years before the date of death of the deceased. However, what exactly does living together as a couple mean?  In today’s changing society, de-facto couples may not always live in the same residence due to various reasons including living in different states. Could they still be characterised as living together and be in a de-facto relationship?

The answer is Yes.

In the recent case of Irwin v Pamplin, the NSW Supreme Court ruled that a couple does not need to live together to be considered as a de-facto couple if there are other factors showing otherwise. In this case, the plaintiff claimed she was the de-facto partner of the deceased and should accordingly inherit the deceased’s estate. The deceased’s mother and brother disputed this on the grounds that the plaintiff was just a friend or girlfriend of the deceased. They pointed to the fact that the plaintiff lived in a separate house from the deceased and that the plaintiff rarely attended social and family functions with the deceased. There was further evidence that the plaintiff did not list the deceased as her de-facto partner on Centerlink forms.

However, the plaintiff tendered evidence of private text messages and emails that the deceased sent referring to her as his partner and exhibiting his intention that he wanted his estate to go to her. The residences were also very close to each other, they each had material interest in the properties and the plaintiff would visit the deceased every day at his residence before going back to her own residence at night. When questioned about why they lived in separate residences, the plaintiff stated that the separate residence allowed her to take care of her elderly mother and for the couple to pursue their own personal, passionate hobbies. Further, the deceased suffered from intense migraines and they couple decided that sleeping separately would be beneficial to the deceased’s health. Importantly, the judge found that the plaintiff and deceased were at all times monogamous, sexually intimate and financially interdependent. Further, even though the plaintiff did not attend family functions, family and friends of the deceased were aware of the plaintiff as the deceased’s partner. In light of all these factors, the Court found that even though the couple lived separately, they were in a relationship as a couple living together. Accordingly, the plaintiff was the de-facto partner of the deceased and entitled to the deceased’s entire estate.

The fact that a couple does not live together is no longer a breaking factor in determining whether they are a de-facto couple. The law is beginning to adapt and change to reflect modern society. All cases are determined on their own facts.

Sydney Probate Lawyers are experts in Probate and Will disputes. The principal of the law practice, Graeme Heckenberg has over 25 years’ experience in this area of law. If you would like more information on contesting a will on the basis of a de-facto partner, contact Sydney Probate Lawyers at (02) 9221 2779 or email to make an appointment with our expert legal team