Family Law

De-Facto Relationships – Important Things to Consider

In 2009 new de-facto law were put in force – which declare that de-facto couples will be treated in the Family Court in the same way as married couples.

This discussion highlights the that in the context of de facto relationships, it is important for couples to consider whether appropriate steps might be taken to document their intentions by a Will, rather than leaving the issue for determination by the court. Read on.

The legal requirement surrounding the existence of a de-facto relationship has been widely debated. It may all seem simple: a de-facto relationship is between two adults which can be of the same or opposite sex, who are living together on a genuine domestic basis without being legally married to one another and related by family. And for a property settlement it is required that – the two people in the facto relationship must have been living together for a period of that least two years.

The problem here is that sometimes “the couple” lose sight (they say ‘love is blind’) as there may be no clear delineation from what at first is essentially a relationship of boyfriend-girlfriend (or boyfriend-boyfriend/ girlfriend- girlfriend), to what then develops (as is often the case) into a real “de-facto relationship”,or in the context of what we are discussing – a legally definable de-facto relationship with legal consequences.

The court takes into account several factors in determining whether a person is a de facto partner and this is where complications can arise. These include the:

Nature and extent of their common residence;
Length of their relationship;
Whether a sexual relationship existed;
Degree of financial dependence or interdependence, and any arrangements for financial support;
Ownership, use and acquisition of property;
Degree of mutual commitment to a shared life including care and support of each other;
Performance of household tasks;
Reputation and public aspects of their relationship.

In this the first of 3 articles we shall look at a recent case that demonstrates the unintended difficulties and complications that can arise when the partners of a de-facto relationship die without a Will, and especially so,when the de-facto relationship is “questionable”.

Burton v Spencer (2015) QSC 356

Sharon Burton died in July 2012 at the age of 56. She did not make a will prior to her death. Although she was not survived by any children, she was survived by her mother (Mrs Burton) and Ken Spencer who claimed to be her de facto spouse.

Under Queensland’s Succession Act, if Miss Burton was survived by a spouse (Mr Spencer) but not children, the spouse would be entitled to all of her estate. However, if Miss Burton died leaving neither children nor a spouse, her mother would be entitled to her estate (as is the case in South Australia).

Mr Spencer had been granted Letters of Administration by the Court as her spouse. This meant that he stood to take all of Sharon Burton’s Estate (which was significant). Several months later, the Applicant (Miss Burton’s Mother) applied to the Court for a declaration that the Respondent (Mr Spencer) was not Miss Burton’s spouse and, sought an order that his Letters of Administration be revoked.

The Applicant (the mother of Miss Burton) was successful as the court was not satisfied that the Respondent was Miss Burton’s spouse and, the Applicant was granted Letters of Administration in his place.

Mr Spencer, (the Respondent) appealed this decision on the basis that the judge did not properly assess the evidence and misapplied the statutory indicia of a spouse. The Court of Appeal allowed the appeal, setting aside the previous declarations and referring the matter to a different judge for a fresh trial. Again, the primary issue before the new judge was whether the Respondent (Mr Spencer) satisfied the statutory definition of a spouse: that they “lived together as a couple on a genuine domestic basis …… for a continuous period of at least 2 years ending on the deceased’s death”.
The new judge found that the Respondent failed to prove on the balance of probabilities that he was Miss Burton’s spouse. While there was evidence of a relationship between Mr Spencer and the deceased, their dealings with respect to household arrangements and the absence of any circumstances of co-ownership or acquisition of property or any arrangement for financial support or financial dependence lead the court to the conclusion that Mr Spencer had not proven that he and the deceased had lived together as a couple on a genuine domestic basis in the 2 years prior to the deceased’s passing away.

As a result of the decision, the deceased’s mother was entitled to become the administrator of her daughter’s estate and become entitled to the whole of the proceeds of the estate.
This is a very interesting case because Miss Burton and Mr Spencer had lived together for a lengthy time starting from 1999. But their de facto relationship ended in 2008. While they commenced a “boyfriend-girlfriend” relationship again by 2010, they only recommenced a de facto relationship (i.e. living together in a common residence) several weeks before her death. Other factors which were of relevance to the Court’s decision was Miss Burton’s financial independence from Mr Spencer and various hospital records throughout the period that indicated Miss Burton’s view of their relationship. This case illustrates that many factors come into play when determining whether a de-facto exists.

Extracts from this case indicate that not long before Miss Burton lost consciousness she told a friend what she wanted to have in her Will, and, that this included providing for Mr Spencer and her Mother and nieces and nephews, However, no Will was written either formally or informally. The point being had Miss Burton made a Will on these terms before her death, she may have spared her estate this costly and protracted litigation.

In the context of de facto relationships, it is therefore important for couples to consider whether appropriate steps might be taken to document their intentions by a Will, rather than leaving the issue for determination by the court.

Mark Quaglia
BSG Lawyers

For an appointment to see Mark Quaglia
Tel: 8342 1388 or 0438650558

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