What is a Spouse?

In days past the definition of a "spouse" just covered legally married persons; however, under NSW succession law, the definition is much broader and recent decisions continue to affirm that status.

A recent example is the NSW Supreme Court's decision in McGuire (BHT McGuire) v NSW Trustee and Guardian [2023] NSWSC 1013, where a long-term de facto partner successfully claimed a share of an estate, despite not being included in the deceased will. The case highlights the importance of understanding how the law defines a "spouse" when it comes to estate planning and family provisions claims.

Who is a "Spouse"?

In New South Wales, the concept of a "spouse" plays a critical role in succession law, particularly when a person dies intestate (without a valid will) or when a family provision claim is brought (under s.57 of the Succession Act 2006 (NSW) (“the Act”), a "spouse" is an eligible person who may apply for a family provision order.

Under section 104 of the Act, a person is considered a "spouse" of the deceased at the time of death if they were either:

• married to the person immediately before the person's death, or

• who was a party to a domestic partnership with the intestate immediately before the intestates death. A 'domestic partnership' includes de facto relationship and a registered relationship.

What is a De Facto Relationship?

A de facto spouse is someone who lived with the deceased in a relationship as a couple, but who was not legally married. To qualify as a "spouse" under the Act, the person must have been in a de facto relationship with the deceased that:

• Existed for at least two years continuously, or

• Resulted in the birth of a child, regardless of duration

  
  

The legislation does not require cohabitation to have occurred for the full duration of the relationship or immediately prior to death, but continuous cohabitation is a key indicator of the existence of a de facto relationship. In contentious cases, courts consider a range of factors under section 21C of the Interpretation Act 1987 (NSW) to determine whether a de facto relationship existed, including:

• the duration of the relationship;

• the nature and extent of common residence;

• whether a sexual relationship existed;

• the degree of financial dependence or interdependence

• the ownership, use and acquisition of property;

• the care and support of children;

• the performance of household duties;

• the reputation and public aspects of the relationship.

No single factor is decisive and the overall nature of the relationship is assessed holistically.

What is a Registered Relationship

A registered relationship in New South Wales is a legally recognised domestic relationship between two adults, regardless of gender, who are not married to each other or related by family who register their relationship in accordance with the Relationships Register Act 2010 (NSW).

To register a relationship, both partners must be over 18, provide proof of identity, and lodge a relationship registration application with the NSW Registry of Births, Deaths and Marriages. There is no requirement for a minimum period of cohabitation.

Registration provides formal recognition of the relationship and can serve as a conclusive proof of domestic partnership for legal purposes, including succession matters under the Succession Act 2006 (NSW). Once registered, the relationship is treated similarly to a de facto relationship of two years or more.

A registered relationship can be revoked by application by one or both parties, and termination is effective after a 90-day cooling-off period.

The McGuire Decision

in the McGuire case, the deceased, who died in 2021, was survived by his two adult children and his de facto partner of 14 years. The deceased left a will dated 31 January 2003, which split the whole of his estate equally between his two children. The deceased's partner, having no provision under the will, applied for a share of the estate, arguing that her relationship with the deceased was akin to that of a spouse.

The Court accepted that the plaintiff had lived with the deceased in a genuine domestic partnership for many years, empahsised that legal marriage is not the sole benchmark for spousal status, and confirmed thar de facto partners have equal standing under the Succession Act. A family provision order was granted, giving the partner a share in the deceased's estate, and therefore reducing the children's share of the estate.

Further, this decision was held despite evidence being given that the deceased had wished to end the relationship with his partner prior to his death.

Key Takeaways

• De facto partners are spouses under NSW law. If the relationship meets the statutory criteria, the partner has standing to bring a claim for further provision from an estate.

• Wills should reflect real-world relationships. A partner not named in a will may still succeed in a claim if they can establish their entitlement under the Succession Act.

• Relationship evidence matters. Courts will look at financial arrangements, living situations, emotional support and hoe the couple presented their relationship to others

Why it Matters

The McGuire case is a reminder that estate disputes are often about the reality of personal relationships. Those in blended families or long-term de facto relationships should ensure their estate plans accurately reflect their wishes and anticipate potential claims.

Need guidance on managing these risks? Our experienced Estate Planning team can help review your estate plan to ensure it supports your intentions and prevents future disputes, please reach out.

This article is not legal advice, and the views and comments are of a general nature only. This article is not to be relied upon in substitution for detailed legal advice.

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