12/05/2026
De facto Partners:
Who is a de facto for the purposes of making a Family Provision Act claim?
In our experience, the Family Provision Act 1972(WA) comes as a shock to many people. Testamentary freedom is not absolute in Western Australia - if any person dies and the court is of the opinion that the disposition of the deceased person’s estate effected by their will (or through the laws of intestacy) is not such as to make adequate provision for the proper maintenance, support, education or advancement in life for any person who may apply to the court under the Family Provision Act (the Act), then the court may order that such provision be made out of the estate for that purpose.
Claims under the Act can only be made by limited categories of people (see our earlier note “Who is eligible to make a Family Provision Act claim?”).
One of the more potentially complicated categories of people who are eligible to apply under the Act, is “a person who was married to, or living as a de facto partner of, the deceased person immediately before the death of the deceased person” (emphasis added). (S7(1)(a))
So, who is a de facto partner, for the purposes of the Act?
A de facto partnership means two persons who live together in a marriage-like relationship (s13A(1) Interpretation Act WA). When an application is made under the Act, it is the court who will decide whether a de facto relationship existed between the applicant and the deceased person and they will consider the following factors (IAWA s 13A(2)(a)-(i)):
The length of the relationship
Whether the two persons have resided together
The nature and extent of the common residence
Whether there is, or has been, a sexual relationship between them
The degree of financial dependence or interdependence and any arrangements for financial support between them
The ownership, use and acquisition of their property (including any property they own individually)
The degree of mutual commitment by them to a shared life
Whether they care for and support children
The reputation, and public aspects, of the relationship between them.
None of these factors is essential to finding that a de facto relationship existed. It does not matter whether the two persons were the same sex or different sexes (IAWA s 13A(3)(a)), or whether either of the persons was legally married to someone else or in another de facto relationship ( IAWA s 13A(3)(b)).
Sometimes, the facts and circumstances will make it easy to demonstrate that two persons lived together in a de facto relationship. Think about that couple who you know who have kids together, come to their kids’ sports together, own and share a house together, have shared friends and shared bank accounts, holiday and built a life together. In fact, you’re surprised to discover they are not legally married – because it seems for all the world that they are happily married and have been so for years.
Contrast that with the facts and circumstances of the following case, which was decided in 2024 in the Western Australian court of appeal.[1]
In this case, a woman, Ms K (for our purposes), made a Family Provision Act claim against the estate of Mr M (the deceased). Ms K said she had standing to make such a claim because she had lived as the de facto partner of the deceased before his death. Mr M’s niece and nephew, with whom he had been very close (and to whom a significant share of his small estate was left), denied that the two had been a de facto couple, and said rather the two were only ever boyfriend and girlfriend.
The decision in first instance went on appeal and was reversed.
Before we reveal which way the courts decided – why don’t you read the agreed facts below and see which way you would have decided…
The couple met in 2006 and commenced a sexual relationship. They ceased their relationship for periods but generally it continued until Mr M died.
In 2006, Mr M proposed to Ms K and she accepted, but they never married.
In 2015, Mr M started living with Ms K in her unit, sharing the same bed most nights he was there. Ms M kept his own unit empty and without tenants – using it mostly as storage. He would visit the property every few days to water plants, collect his mail, and perform other maintenance.
Mr M stayed as Ms K’s house while she went to visit her family overseas and used her car as if it were his own when he couldn’t afford to service and replace tyres on his own car.
Since 2017, Mr M had ceased operating his business and had insufficient financial resources to meet his personal expenses – he had relied on credit cards which he couldn’t have repaid himself without selling his property.
Ms K paid for all her own property expenses, and Mr M paid for all his own property expenses.
Ms K bought food for both of them. Since at least 2015, it appeared Mr M was almost entirely financially dependent for daily living expenses on Ms K (other than expenses for his property).
Ms K did not give evidence that she claimed Mr M as a dependant de facto spouse on her tax returns.
Mr M visited his mother in a nursing home every day, and rarely if ever mentioned Ms K.
Mr M had one main friend with whom he met to have an extended lunch once a week. Mr M barely spoke of Ms K in these lunches.
Ms K frequently went out with friends and Mr M did not accompany her.
Ms K visited her family in NZ annually and Mr M did not accompany her.
In September 2019, Mr M was diagnosed with pancreatic cancer.
Ms K took leave from work and spent time with Mr M in hospital, until he died on 6 November 2019.
During that time, medical notes refer to Mark and “his partner”. Staff at the hospital clearly of the view the two presented as “partners”.
In hospital, Mr M asked his nephew (with whom he was close) to visit while Ms K was not there and asked him to write up his will and be his executor. He also asked his nephew to be his enduring power of attorney.
In hospital, Ms K found out about the contents of Mr M’s will and told him that he had lived with her for free for years because they were a couple and so if he was leaving $5,000 to his cousin for housing and feeding him for 6 months years ago, then he should be leaving her at least $40,000 for the time her lived with her. As a result, Mr M altered his will to leave Ms K $40,000 instead of $30,000.
Ready for the answer?
At first instance, the judge found that the couple were NOT de facto. The court found that although Ms K believed they were committed to a shared life, Mr M was not committed to the same – so although the pair had lived together for years and had a sexual relationship, they were not a de facto couple. In making her decision, the judge put significant weight on the facts demonstrating that the couple kept their finances entirely separate and did not ‘present to the world as a couple’ – neither of them were involved in the other’s families or friendships.
That decision was subsequently overturned. The couple WERE de facto.
The court of appeal thought that not presenting to others as a couple, reflected Mr M being a largely solitary individual. He visited his mother daily, had lunch once a week with a friend and otherwise seemed to spend all his time at Ms K’s house. He also became almost entirely financially dependent on her. The court of appeal gave significant weight to the time Mr M spent in hospital and took the view that, when it mattered, and the circumstances required, Ms K and Mr McLeod, very much 'presented as a couple'.
As you can see, reasonable minds may differ about whether a couple has been living in a de facto relationship. However, there is only one legally correct answer.
So, for a de facto partner to make a claim under the Act, not only will they have to demonstrate that adequate provision was not made for their proper maintenance, support, education and advancement in life, they must first prove that they were in a de facto relationship. And that may or may not be an easy thing to do.
This note contains general information only. For legal advice considering your particular circumstances, you will need to obtain legal advice.
[1] See [2024] WASCA 12.
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