The law surrounding de facto relationships can be complex, particularly for couples who enter relationships later in life. Unlike married couples, de facto partners must establish their relationship under section 4AA of the Family Law Act 1975 (Cth) to access legal protections. This can be difficult for elderly couples who have spent decades together but maintain financial independence, do not share children, and struggle to meet the legal criteria of a de facto relationship. When one partner experiences cognitive decline, such as dementia, their adult children may take control of their affairs through power of attorney and deny the existence of the de facto relationship to protect their inheritance. This situation can leave the surviving partner at risk of being excluded from the home and financial assets they shared for years.
Societal and legal definitions of relationships often fail to reflect modern partnerships. Many couples who meet later in life choose not to formalize their relationship in ways that fit legal definitions. They may keep separate finances, live apart for practical reasons, and not have joint assets or children to provide clear evidence of their relationship. These choices, while valid, can work against them when legal disputes arise after one partner’s death or incapacity.
Legal Barriers and the Role of Power of Attorney
Elderly de facto couples often struggle to meet the traditional legal indicators of a de facto relationship. Section 4AA defines a de facto relationship as a couple living together on a genuine domestic basis, but the law considers several factors, including:
- Length of the relationship
- Whether they lived together and to what extent
- Financial dependence or interdependence
- Joint ownership or use of property
- Public perception of the relationship
A couple who has been together for 20 years but maintains separate finances, maintain separate residences and do not have children together may find it difficult to prove they were in a de facto relationship, if it is contested. This issue becomes even more serious when one partner loses capacity and their adult children step in, motivated by inheritance concerns rather than the best interests of their parent’s partner.
When an elderly person develops dementia or another form of cognitive impairment, the appointed power of attorney or next of kin can make legal and financial decisions on their behalf. If the attorney is an adult child with a vested interest in their parent’s estate, they may act to exclude the de facto partner.
Loss of capacity of de facto spouse
In circumstances where you have a de facto couple who commenced a relationship later in life and disputes arise later on involving the adult children, common tactics include:
- Denying the existence of the de facto relationship
- Restricting access to the family home
- Preventing medical or personal contact between the partners
- Selling or transferring property before the legal status of the relationship is determined
- Blocking financial support or access to joint assets
The partner left behind often has no immediate legal recourse unless they first establish jurisdiction under the Family Law Act. This can leave them in limbo, unable to access their partner’s finances or remain in their home. If they are not listed as a beneficiary in a will or other estate planning documents, they may face eviction or financial hardship despite spending decades as an equal partner in the relationship.
The Cost of Proving a De Facto Relationship in Court
The surviving partner may attempt to seek legal protection under the Family Law Act, but they must first prove the de facto relationship existed. Unlike married couples, who automatically fall under family law jurisdiction, de facto couples must first establish their relationship before they can begin legal proceedings for property adjustment. This requirement can delay access to justice and impose significant costs.
Establishing a de facto relationship in court requires substantial evidence, including testimonies from friends, financial documents, and records of the couple’s interactions. The burden of proof falls on the surviving partner, who may already be dealing with grief, financial instability, and legal threats from the deceased’s children. Even if they have evidence, they may be forced into prolonged litigation simply to have their relationship recognized before any substantive claims can be considered.
If the de facto relationship is not recognised, the surviving partner has little recourse under family law. Instead, they may be forced into complex estate litigation to contest a will or seek equitable relief through claims of constructive trust or unjust enrichment. These legal avenues are costly, time-consuming, and uncertain. For many, the stress and financial burden of pursuing such claims become overwhelming, and they may walk away without legal recognition or financial support.
Steps to Protect a De Facto Relationship
Elderly couples can take proactive steps to prevent disputes:
- Registering the de facto relationship where state laws allow, providing formal legal recognition
- Entering into a Binding Financial Agreement (BFA) to define financial arrangements and avoid later disputes
- Creating joint financial ties, such as joint bank accounts, utility bills, or property ownership
- Updating estate planning documents, including wills, enduring powers of attorney, and guardianship appointments
- Keeping records of shared expenses, living arrangements, and social acknowledgments of the relationship
Additional measures include creating video or written statements outlining the relationship, joining clubs or organisations together, and ensuring mutual friends and associates are aware of the partnership. The more evidence available, the harder it is for family members to challenge the legitimacy of the relationship.
Conclusion
The legal system does not always accommodate modern relationships, particularly for those who find love later in life. Without the formal recognition provided to married couples, elderly de facto partners remain vulnerable to inheritance disputes and legal challenges that can leave them financially and emotionally devastated. Taking proactive legal steps can help ensure a lifetime partnership is not erased in the face of estate battles. Couples in these situations should seek legal advice early to safeguard their rights and ensure that their relationship is recognized before disputes arise.
