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Ashes to Ashes

December 2018

De facto relationships and claims after death

This article follows the article entitled “De facto relationships or friends with benefits?” by Anesha Dhanji in our Spring 2018 Law Report. 

It represents another case where there was a difference of opinion as to whether a couple were in a de facto relationship. The facts are as follows: 

  • Mr M and Ms D were in a relationship of 27 years that ended only with Ms D’s death. 
  • The parties commenced dating in 1989. 
  • Ms D suffered from Chronic Fatigue Syndrome that made it difficult for Ms D to talk and within 18 months of the relationship commencing she was restricted to a wheelchair suffering from fatigue which required her to go to bed early and get up late. She was unable to work. 
  • The parties never physically lived together. They continued to spend their nights at their own homes. 
  • Mr M gave evidence at Court, after Ms D’s death, that his usual routine was to collect dinner ingredients and/or takeaways, pick up Ms D’s medication, before visiting her at her home where he would cook dinner, feed the cat, wash the dishes and stay with her until she went to sleep. 
  • He would usually leave a thermos by her bedside for her to have a hot drink the following morning. 
  • Mr M gave evidence that the parties had a sexual relationship and Ms D was listed as his next of kin following Mr M suffering significant injuries in a bicycle accident. 
  • Mr M proposed to Ms D but she did not accept although she wore the ring that he gave her. 
  • For his part, Mr M had his own residence next door to his mother. He was a caregiver and support for his mother and was reluctant to move away from living near her. 

Why then, did this matter end up in Court? Following her death, Ms D left Mr M nothing in her Will other than her ashes. Mr M did not consider that to be sufficient, given their long-standing de facto relationship. 

Despite the unusual circumstances, the Court found that the parties were in a de facto relationship. In finding that a de facto relationship existed, the Court took into account the following:

  • The significant duration of the relationship. 
  • The fact that there were a number of witnesses who had a clear view that the parties were in a de facto and exclusive relationship. 
  • That the parties were having a sexual relationship. 
  • That in the particular circumstances of this case, Ms D’s medical issues substantially restricted her ability to participate in society and therefore her relationship with Mr M became even more significant. The purchase of the ring and Ms D’s agreement to wear it was also relevant. 

This case highlights further the point raised in Ms Dhanji’s earlier article that whether a couple are in a de facto relationship or not is far from clear cut. If you wish to protect assets from a potential claim, then it is important that you seek early legal advice to best provide protection for your assets.