Written by Sam Pendergast, Senior Associate
Back in 1971, Australia was a different place. The Vietnam War was just coming to an end, Eagle Rock by Daddy Cool was topping the charts and the Aboriginal flag, as we know it today, was flown for the first time.
Australian relationships were different too. Marriage was a fundamental feature of the Australian nuclear family structure. For every 1,000 people over 16 years old, 13 of those people were married.
Cut to today and the statistics paint a very different picture. Australian Bureau of Statistics data shows that in 2025 only 5.5 Australians out of 1,000 had walked down the aisle.
This statistic could say one of two things. Either Australians are no longer pursuing relationships, or there are just as many relationships as before, but those relationships are being formalised by marriage less often.
Looking around your social circles, it is probably clear which one of these two hypotheses is correct. Australians are no less inclined to look for love and connection than they were 50 years ago, but they do seem less inclined to solemnise relationships by marriage.
What happens to an estate when there is no marriage?
When your husband or wife dies, there is very little ambiguity in the legislation regarding your right to be involved in the administration and distribution of the deceased’s estate. Marriage firmly establishes that right and, save for extenuating circumstances, you will likely be entitled to take some or all of the deceased’s Estate even if they have not prepared a Will.
The complexity arises when your partner dies, you were never married, and questions are asked about the authenticity of your relationship.
The status of surviving unmarried partners in these circumstances is assessed against the definition of an unregistered domestic partner and, more often than ever before, Australians are being confronted with the complexities of navigating the law as it applies to unmarried partners.
Who is considered an unregistered domestic partner in Victoria?
An unregistered domestic partner of someone who dies is defined in S3(1) of the Administration and Probate Act 1958 (Vic) as:
A person (other than a registered domestic partner of the person) who, although not married to the person –
- Was living with the person at the time of the person’s death as a couple on a genuine domestic basis (irrespective of gender); and
- Either –
- had lived with the person in that manner continuously for a period of at least 2 years immediately before the person’s death;
- or is the parent of a child of the person, being a child who was under 18 years of age at the time of the person’s death.
There are some clear requirements here relating to the duration of the relationship and shared responsibility for children. The definition says that to be considered an unregistered domestic partner, you must have been living together for at least two years, or you and the deceased must have a child together who was under 18 at the time of death.
In the context of contemporary Australian relationships, this appears to be a relatively blunt definition without much room for nuance.
Factors courts consider when determining domestic partner status
Helpfully, the Act goes on to provide:
For the purposes of the definition of unregistered domestic partner in subsection (1), in determining whether persons were unregistered domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case.
Section 35(2) of the Relationships Act 2008 (Vic) is where the law sets out some other factors and attributes of a relationship that may be considered by the courts in determining whether two people were in fact in a relationship.
The Court may consider:
- The degree of mutual commitment to a shared life;
- The duration of the relationship;
- The nature and extent of common residence;
- Whether a sexual relationship existed;
- The degree of financial dependence or interdependence, and any arrangements for financial support;
- The ownership, use and acquisition of property;
- The care and support of children; and
- The reputation and public aspects of the relationship.
Unsure of whether you qualify as a domestic partner?
If you are unsure whether your relationship with a deceased loved one satisfies the requirements of the unregistered domestic partner definition, contact Maddens Lawyers for an obligation-free consultation. We can provide an initial assessment of your circumstances and advise on your potential rights in relation to the estate.
Need advice about estate administration or Will disputes? Speak to our experienced team today.
Recent court cases highlight the importance of evidence
Beyond the written legislation, it is useful to look at recent court decisions concerning applications by surviving unmarried partners for recognition of their relationship.
Just like your circumstances, the circumstances of those involved in these matters were highly unique and required the attention of legal practitioners and the Court to establish the existence of a domestic partner relationship.
Nicholson v Sheils [2026] VSC 18
A recent Victorian Supreme Court decision in Nicholson v Sheils [2026] VSC 18 demonstrated that despite the deceased remaining legally married to his first wife, from whom he separated decades earlier, his unmarried partner at the time of death was recognised as his surviving domestic partner.
Jasarevic v Nesovanovic [2017] VSC 267
In Jasarevic v Nesovanovic [2017] VSC 267, the Court found that the surviving partner of the deceased met the definition of an unregistered domestic partner, even though the couple were never married, maintained separate residences and faced scrutiny regarding the authenticity of their relationship.
Dunham, Re [2025] VSC 746
In Dunham, Re [2025] VSC 746, the Court heard competing claims from two individuals who each sought recognition as the deceased’s surviving unregistered domestic partner. Ultimately, one party’s claim was struck out due to insufficient evidence. The case highlights the importance of presenting strong and persuasive evidence when seeking to establish the existence of a qualifying domestic relationship.
Seeking advice about the estate of a deceased partner?
When a loved one passes away, uncertainty about your legal status can add significant stress to an already difficult time. Whether you were married, in a de facto relationship or believe you may qualify as an unregistered domestic partner, obtaining early legal advice is crucial.
If you require guidance regarding estate administration, estate litigation or a potential Will dispute, contact Maddens Lawyers today. Our experienced Wills and Estates team can help you understand your rights and navigate the process with confidence.
Book your obligation-free consultation today, or contact our friendly team to discuss your options.
