Recently there has been a number of cases involving de facto relationships or alleged de facto relationships in the Courts. What we can see from these cases, is that the relationships are as varied as the people.
In NSW, de facto partners are eligible to make applications for provision from a deceased person’s estate. In order to succeed, a de facto applicant needs to prove that the deceased did not make adequate provision for their proper maintenance, education and advancement in life.
The case of Sun v Chapman [2022] NSWCA 132 (26 July 2022) (before Lemming JA, White JA and Brereton JA) was a Court of Appeal decision involving an alleged de facto partner.
According to the applicant (Ms Sun), she met the deceased in a caravan park and was invited to come and look after him. Whereas, the executor’s version of events is that the applicant responded to a newspaper ad seeking someone to provide domestic services in exchange for free accommodation. This developed into an intimate relationship.
The applicant was about 40 years younger than the deceased. Notwithstanding the differences in ages, the applicant lived with the deceased for about 20 years.
However, the relationship was not always sunshine and roses. The deceased made frequent complaints about Ms Sun in the last 10 years of his life and in the last five years of his life, there were police complaints.
The deceased’s Will was made in 1996 (two years before the relationship with the applicant began), and the beneficiaries were the deceased’s children. Ms Sun received no benefit under the Will.
The estate primarily consisted of a house at Seaforth which sold for about $2,400,000 and other assets of about $180,000.
At the time of hearing, Ms Sun was 60 years old. She earned a modest income, had super and owned a property with a mortgage. Ms Sun made an application for a Family Provision order and the application was dismissed in the first instance (before Emmett AJA).
Ms Sun appealed and the appeal was allowed. In finding that the primary judge erred, the Court held that the evidence pointed to the existence of a de facto relationship, which continued up to the deceased’s death.
An order for provision was made in the sum of $550,000 being a sum to discharge Ms Sun’s mortgage.
What is evident from this, and other cases, is that each application turns on its own facts and the totality of the evidence before the Court.
In determining whether the deceased and the applicant are in a de facto relationship, the Court will consider the factors set out in section 21C (3) of the Interpretation Act 1987 (NSW). These factors include the following:
- The duration of the relationship;
- The nature and extent of common residence;
- Whether there is a sexual relationship;
- Whether they are financially dependent on each other;
- Whether they own property together;
- The degree of mutual commitment to a shared life;
- The care of children;
- Who performs household duties;
- The public aspects of the relationship.
There is no single factor which leads to the conclusion of a de facto relationship. The Court will consider the factors listed above in deciding the status of the relationship between an applicant and the deceased.
If you have any questions about making an application for a Family Provision order or a claim involving a de facto relationship, please contact our office on (02) 9101 7000. We have an experienced team of litigators who can help you with your matter.
