Where the Legal Definition Comes From

The Succession Act 2006 (NSW) does not define “de facto relationship” itself. Instead, section 57 relies on a separate, general-purpose definition used across NSW law.

According to the full text of section 57, “de facto relationship” is defined in section 21C of the Interpretation Act 1987 (NSW). The Interpretation Act 1987 (NSW) in full applies this single definition across NSW legislation generally, which is why the same test also applies in areas like intestacy and superannuation nominations.

That section defines a de facto relationship as existing when two people live together as a couple and are not married to one another or related by family. This definition applies regardless of gender.

A de facto relationship can also exist even if one person is legally married to, or in a registered relationship with, someone else.

A person is also automatically a de facto partner under this definition if they are in a registered relationship with the deceased under the Relationships Register Act 2010 (NSW), thereby removing the need to prove the relationship’s existence by the factors below.

The Nine Factors Courts Consider

There is no minimum length of time a relationship must last under the Succession Act 2006 (NSW) itself. Instead, the court looks at the whole picture using nine factors listed in section 21C(3) of the Interpretation Act 1987 (NSW).

• Duration of the relationship, though a shorter relationship is not automatically disqualified
• Nature and extent of common residence, including whether the couple lived together full time or split their time between two homes
• Whether a sexual relationship existed, one factor among many, not a requirement on its own
• Degree of financial dependence or interdependence, and any arrangements for financial support between the parties
• Ownership, use, and acquisition of property, including whether assets were bought or held together
• Degree of mutual commitment to a shared life, looking at the relationship as a whole rather than any single event
• Care and support of children, where applicable
• Performance of household duties, such as who managed cooking, cleaning, or day-to-day domestic tasks
• Reputation and public aspects of the relationship, including how the couple presented to family, friends, and the wider community

No single factor is decisive, and the court is not required to find in favour of the relationship’s existence just because several factors point that way. Each case turns on the combined weight of the evidence.

De Facto Partner vs Close Personal Relationship

Section 57 also recognises a separate category for a person in a close personal relationship with the deceased at the time of death, and the two categories are easy to confuse.

A de facto relationship requires a couple relationship, generally understood to involve some element of romantic or intimate connection alongside shared life. A close personal relationship, by contrast, can exist between people who are not a couple at all, such as two adult siblings caring for each other in later life.

This distinction matters because it affects which factors and arguments are actually relevant to establishing eligibility. Misclassifying the relationship type can weaken an otherwise strong claim.

The Succession Act 2006 (NSW) in full sets out both categories side by side in section 57, alongside the other eligible person categories such as spouses, children, and former spouses.

A Real NSW Example: Estate of Gardner; Bernengo v Leaney

A useful illustration is Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324, decided by the NSW Supreme Court.

The deceased died without a will. Her nephew argued the estate should pass to him and other relatives under the intestacy rules.

The claimant argued he had been the deceased’s secret de facto partner for around a decade, splitting his time between her home and his own property. Because the relationship had been kept private, there was no obvious public evidence of it.

The court’s key evidence included:

• Bank and phone records showing the pattern of contact and time spent together
• Medical records listing each other as emergency contacts
• Witness evidence from the deceased’s stepdaughter and neighbour

Even though several factors on their face pointed away from a de facto relationship, the combined weight of the objective evidence was enough to establish it. The court accepted the claimant’s evidence and found in his favour.

More: Can Stepchildren Contest a Will in NSW? Section 57 Explained

What Evidence Actually Helps

Building a case that a de facto relationship existed usually requires more than a witness simply asserting it did. Courts favour objective, contemporaneous evidence that independently corroborates the relationship.

• Financial records, including joint accounts, shared bills, or a pattern of financial support between the parties
• Correspondence and communication records, such as the frequency and nature of phone or message contact
• Medical and emergency contact records, which often show how a couple identified their relationship to third parties
• Photographs and social evidence, including family events, holidays, or how the couple presented publicly
• Witness statements from family, friends, or neighbours, particularly people with no direct financial interest in the outcome
• Property and residence records, such as leases, utility bills, or mail addressed to both parties at the same address

Why This Matters for Executors, Not Just Partners

De facto relationship disputes are not only a concern for the surviving partner. Executors and administrators often have to assess, before distributing an estate, whether someone claiming to be a de facto partner has a credible claim.

This is particularly relevant where the deceased died without a will. A proven de facto partner can be entitled to some or all of the estate under the intestacy rules, ahead of more distant relatives.

Proving a de facto relationship existed becomes the central issue in these estates. Distributing an estate to relatives before properly considering a genuine de facto partner’s claim can expose an executor to personal liability if the claim later succeeds.

More: What Is the Statutory Legacy in NSW and How Much Does a Spouse Get?

Registered Relationships Remove the Guesswork

Couples who want certainty without relying on the nine factors have an alternative. Registering a relationship under the Relationships Register Act 2010 (NSW) establishes de facto partner status directly, without needing to later prove the relationship existed through witness and documentary evidence.

This is a meaningful piece of succession planning for couples who are not married but want their partner’s status clearly established in advance. It matters most where the relationship might otherwise be difficult to evidence, such as when the couple do not live together full-time or keep the relationship largely private.

How Empower Probate Lawyers Can Help

Whether a de facto relationship existed is ultimately a question of evidence, and the strength of that evidence often determines whether a claim succeeds at all. This makes early, careful preparation essential, both for a partner bringing a claim and for an executor assessing one.

We advise claimants and executors on family provision claims and contesting a will across NSW, including matters where de facto status is disputed. We help identify and gather the evidence that actually influences these decisions, rather than relying on assertions alone.

Call 1300 481 161 for an initial consultation. Specialist advice. Free initial consultation. Deferred fee arrangements are available in eligible cases.

Frequently Asked Questions

How long do you have to live together to be considered de facto in NSW?

There is no minimum period required under the Succession Act 2006 (NSW) for a family provision claim. Duration is one of nine factors the court considers, and a shorter relationship is not automatically disqualified if the other evidence is strong.

Does a de facto relationship require living together full time?

No. Courts have accepted de facto relationships where a couple split their time between two residences, provided the overall evidence supports a genuine relationship as a couple.

Can you be de facto with someone while still legally married to another person?

Yes. A de facto relationship can exist even if one person is legally married to, or in a registered relationship with, someone else, though this fact will usually need to be explained alongside the other evidence.

What happens if the relationship was kept secret?

A secret relationship does not preclude a finding of de facto status, but it usually means the claimant needs stronger objective evidence, such as financial records and third-party witnesses, because the couple’s public reputation will be limited.

Does registering a relationship avoid the need to prove it later?

Yes. A person registered under the Relationships Register Act 2010 (NSW) is automatically a de facto partner for legal purposes, without needing to later establish the relationship through the nine factors.

Can an executor be personally liable for distributing an estate to the wrong person?

Yes. If an executor distributes an estate without properly considering a genuine de facto partner’s claim, and that claim later succeeds, the executor can be personally liable to correct the distribution.

Is a de facto relationship the same as a close personal relationship under the Succession Act?

No. A de facto relationship requires the couple to be a couple, whereas a close personal relationship can exist between people who are not a couple at all, such as two family members caring for one another. Both are separate categories of eligible persons under section 57.

What if the deceased’s family disputes that a de facto relationship existed?

This is common, particularly where the relationship was not widely known. Proving a de facto relationship in these circumstances falls on the claimant, which is why gathering objective, contemporaneous evidence early is important rather than relying only on personal recollection.