When is a spouse a de facto spouse? When is a spouse a de facto spouse?

When is a spouse a de facto spouse?

17 September 2014 | Wills & Estates

The Supreme Court of Queensland delivered judgment in the matter of Burton v Spencer on 23 June 2014.

The deceased passed away without leaving a Will on 6 July 2012. The deceased was survived by her mother and a person claiming to be her de facto spouse, Mr Spencer. Mr Spencer initially applied for (and was granted) letters of administration on intestacy in order that he may deal with the administration of the deceased’s estate. Mr Spencer had started dealing with the administration of the estate at the time the application was heard.

The issue during the trial was whether Mr Spencer was the de facto spouse of the deceased. If Mr Spencer was found to be the deceased’s de facto spouse, Mr Spencer would be entitled to the whole of the deceased’s estate.

The court held that whether a de facto relationship exists depends upon the circumstances. The court referred to a number of decisions which distinguish the relationship between a married couple and a de facto relationship. In a marriage, it is presumed that a couple are living together unless they are divorced or separated. The court found that Mr Spencer was required to prove that he and the deceased had been living together as a couple for 2 years as at the date she passed away in order to be considered the deceased’s de facto.

The court found that whilst there was evidence of a relationship between Mr Spencer and the deceased, their dealings personally with respect to household arrangements and the absence of any circumstances of co-ownership or acquisition of property or any arrangement for financial support or financial dependence lead the court to the conclusion that Mr Spencer had not proven that he and the deceased had lived together as a couple on a genuine domestic basis in the 2 years prior to the deceased’s passing away.

As a result of the decision, the deceased’s mother was entitled to become the administrator of her daughter’s estate and become entitled to the whole of the proceeds of the estate.

The outcome of the decision turned on whether the deceased and Mr Spencer were de facto partners and living together as a couple on a genuine domestic basis for a continuous period of at least 2 years ending upon the deceased’s death.

Whilst the court accepted part of Mr Spencer’s evidence, the court found that he was an unpersuasive witness in arguing that such a relationship existed.

In the context of de facto relationships, it is therefore important for couples to consider whether appropriate steps might be taken to document their intentions by a Will, rather than leaving the issue for determination by the court.  

For further information on Wills & Estates, please contact our Accredited Specialist in Succession Law, Jarrad Mobbs.


[1] Mr Spencer has filed an appeal against the decision.