Under section 57(1)(b) of the Succession Act 2006 (NSW), a person is an eligible person to make a claim from the estate of the deceased if they are “a person with whom the deceased person was living in a de facto relationship at the time of the deceased person’s death”.
The Act does not define “de facto relationship”, however the term is defined for the purpose of the Succession Act by section 21C(3)(a) of the Interpretation Act 1987 (NSW). Section 21C reads as follows:
SECT 21C References to de facto partners and de facto relationships
(1) Meaning of “de facto partner” For the purposes of any Act or instrument, a person is the “de facto partner” of another person (whether of the same sex or a different sex) if:
(a) the person is in a registered relationship or interstate registered relationship with the other person within the meaning of the Relationships Register Act 2010 , or
(b) the person is in a de facto relationship with the other person.
(2) Meaning of “de facto relationship” For the purposes of any Act or instrument, a person is in a “de facto relationship” with another person if:
(a) they have a relationship as a couple living together, and
(b) they are not married to one another or related by family.
A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.
(3) Determination of “relationship as a couple” In determining whether 2 persons have a relationship as a couple for the purposes of subsection (2), all the circumstances of the relationship are to be taken into account, including any of the following matters that are relevant in a particular case:
(a) the duration of the relationship,
(b) the nature and extent of their common residence,
(c) whether a sexual relationship exists,
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between them,
(e) the ownership, use and acquisition of property,
(f) the degree of mutual commitment to a shared life,
(g) the care and support of children,
(h) the performance of household duties,
(i) the reputation and public aspects of the relationship.
No particular finding in relation to any of those matters is necessary in determining whether 2 persons have a relationship as a couple.
(4) Meaning of “related by family” For the purposes of subsection (2), 2 persons are “related by family” if:
(a) one is the child (including an adopted child) of the other, or
(b) one is another descendant of the other (even if the relationship between them is traced through an adoptive parent), or
(c) they have a parent in common (including an adoptive parent of either or both of them).
(5) Subsection (4) applies:
(a) even if an adoption has been declared void or is of no effect, and
(b) to adoptions under the law of any place (whether in or out of Australia) relating to the adoption of children.
(6) Subsection (4) applies in relation to a child whose parentage is transferred as a result of a parentage order, or an Interstate parentage order, within the meaning of the Surrogacy Act 2010 in the same way as it applies in relation to an adopted child, even if the parentage order is discharged or otherwise ceases to have effect. For that purpose, a reference in that subsection to an adoptive parent is to be read as a reference to a person to whom the parentage of a child is transferred under such a parentage order.
In the recent case of Barnsley v Riakos (The Estate of Ralph Hodgkinson Clark, late of Vaucluse) [2011] NSWSC 635, Associate Justice Macready considered the question of whether a defacto relationship existed. In that matter the Plaintiff claimed she had been in a defacto relatiionship with the deceased for 16 years. The deceased’s daughter, step-daughter grandchildren and step – grandchildren were beneficiaries under the will, but no provision had been made for the Plaintiff. His Honour addressed each of the criteria set out in section 21C(3).
With respect to whether there was common residence as referred to in S21C 3 (b), his Honour noted that during the period of the relationship the Deceased always had his house at Vaucluse and the Plaintiff rented a flat at Glebe. His Honour noted that there is nothing in section 21C that requires a couple who are living together to share the same household full time or to live in one house. However his Honour found that in this instance the Deceased used his Vaucluse residence as a business base whilst spending most of his evenings, if not all, with the Plaintiff.
With respect to “the reputation and public aspects of the relationship” referred to in section 21C(i), his Honour said, among other things, that over the years the Plaintiff and the Deceased went on many holidays together and that they had many friends that they visited at various times. His Honour also noted that the Deceased was involved with Susan’s family including her parents who lived in Canberra.
His Honour said it is always a question of degree whether there is a de facto relationship and referred to Dunk v Public Trustee [2003] NSWSC 37 and Ward v Anderson ( New South Wales Supreme Court, Waddell CJ in Eq, 6 June 1989, unreported).
His Honour found that in this instance there was a defacto relationship as referred to in section 57(1)(b).
This article is provided for your general knowledge and not to be read as legal advice.