Estate Management
Domestic partner or not? Victorian courts grapple with modern relationships
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When does a relationship count as a domestic partnership in Victoria?
The nature of intimate relationships in Australia has shifted significantly in recent decades. Courts are increasingly required (after the fact) to assess whether a domestic relationship existed between a deceased person and another. Modern relationship styles, including long distance arrangements, technology-based partnerships and illness-separated couples, pose challenges for the statutory tests traditionally used to define domestic partnerships.
This article briefly examines the current Victorian framework, key legislative criteria and recent case law, highlighting emerging complexities in succession matters involving unconventional or non-cohabiting relationships.
Disclaimer: The information provided in the articles in this section are of a general nature and should not be construed as specific advice or relied upon in lieu of appropriate professional advice. Whilst LEAP Legal Software uses commercially reasonably efforts to ensure the information in these articles are up to date at the time of publication, LEAP does not warrant their accuracy, currency or completeness and excludes all loss or damage howsoever arising (including through negligence) in connection with the information contained in these articles.
The Victorian framework: APA and Relationships Act tests
Administration and Probate Act 1958 (Vic)
Under Victorian law, an unregistered domestic partner may have rights:
on intestacy;
to apply for a grant of representation; and
to bring a claim for further provision from the estate.
To qualify as an unregistered domestic partner under section 3 of the Administration and Probate Act 1958 (Vic) (APA), a person must have been:
living with the deceased at the time of death as a couple on a genuine domestic basis, and
either: living with the deceased continuously for at least two years; or sharing a minor child with the deceased.
The test requires the Court to consider the circumstances of the relationship as a whole. Section 3(2) of the APA requires the Court to also consider the factors set out in the Relationships Act 2008 (Vic) (RA).
Relationships Act 2008 (Vic)
Section 35(2) of the RA sets out indicia commonly used to assess ‘marriage-like relationships’, including domestic partnerships and de facto relationships. These include:
mutual commitment to a shared life;
length of the relationship;
nature and extent of common residence;
existence of a sexual relationship;
degree of financial interdependence.
These factors are non-exhaustive and must be applied with regard to the particular circumstances of each relationship.
Case law and judicial approach
Living Together on a Genuine Domestic Basis
Courts have historically recognised the difficulty of defining when a domestic partnership begins, particularly where there is no cohabitation. Victorian courts often cite Keane JA in FO v HAF [2006] QCA 555, who observed that it would be “an exceptional case” for two people who had not shared a residence or provided mutual support to nonetheless be considered to be living together on a genuine domestic basis.
Despite this, courts have increasingly encountered relationships where traditional markers, such as cohabitation, are absent, but the parties nonetheless intend a shared life.
Illness-Separated Couples
An aging population has led to a growing body of case law and legislation regarding illness-separated couples. In Fairbairn v Radecki [2022] HCA 18, the High Court held that the wife’s incapacity and move into aged care did not, by itself, mark the end of the de facto relationship.
Recent 2025 VSC decisions on domestic partnership
Lennon v Chao [2025] VSC 220
In this case, the existence of a domestic partnership was conceded. However, the Court examined an eight year relationship to determine when the domestic partnership commenced. Moore J reaffirmed that while cohabitation is not required, the relationship must have matured to the point where a shared life is a present reality, not merely a future aspiration.
Re the Will of William Ian Southey [2025] VSC 801
This matter involved a testator who left his estate to a romantic partner whom he had never met (and was found to not exist). After the death of his long-term partner, the testator had successive online relationships. While the circumstances of this case suggest that Mr Southey’s last partner was conducting an online romance scam, judgment underscores the complexity of evaluating relationships formed entirely online, especially where intention and authenticity are in dispute.
Implications for modern succession practice
Victoria’s succession framework is increasingly tested by:
couples who do not cohabit due to work, caregiving or personal preference;
older adults in second or third relationships;
individuals forming online or technology-mediated partnerships;
illness-separated couples living apart due to aged care or health needs.
These modern arrangements require a nuanced application of the statutory indicia, with courts placing weight on evidence of mutual commitment, shared plans, financial contribution and the behavioural realities of the relationship.
Practical takeaways for estate planners
As relationship patterns evolve, the assessment of what constitutes a domestic partnership for succession purposes has become more complex. Victorian courts retain broad discretion under the Relationships Act 2008 (Vic) and Administration and Probate Act 1958 (Vic), but contemporary relationships increasingly challenge the traditional indicia.
Estate planning is an opportunity for lawyers to discuss these risks with clients and help them mitigate the potential for conflict if their relationships do not neatly align with the version of relationships contemplated by the traditional indicia of domestic partnership.
You can read the cases and legislation referred to in this article here:
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