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Am I or aren't I? Part 2

Am I or aren't I?  Part 2

Am I or aren't I?  Part 2

For those who have not read Part I of the blog please do so before reading any further Am I or aren't I Part 1.

For those of you who read the blog last week you’ll remember that I had left off with our client dying in hospital shortly after being cross examined.

The next day in Court we had the unfortunate duty of notifying the Federal Magistrate what had just happened and without missing a beat we made an Oral Application that our client’s nephew, as executor of our client’s estate, carry on the litigation. That was always going to be an uphill battle and it was rejected as there was the need for probate to be obtained on our client’s Will. It was a hurdle of course but one that we did not think would be any issue in overcoming. We were wrong. Our Application was met with a caveat in the Supreme Court put on by the other party’s solicitors as a result of our client having other family that was not in the Will. Notice had to be given to the other family members as to whether they wanted to intervene in the proceedings. That was met with responses of none of the family wanting to have anything to do with our client or the proceedings.

Would you believe it? Something that we thought would, and should, have been relatively straightforward was met with resistance and opposition. If I had hair, I would have been tearing it out. But we couldn’t give up, we had to keep fighting, and we did.

Once we had overcome those hurdles we proceeded to trial, which was now listed in November, to hear the remaining evidence.

The balance of the remaining witnesses all provided their evidence, including our client’s nephew on behalf of our client’s estate. In fact one of our witnesses had to give his evidence via telephone link up on the Queen Mary II (I think) in the middle of the English Channel as a result of the proceedings being pushed back to November given all that had occurred previously.

However there was one witness who was unable to provide evidence at the time, our client’s partner. A week or so before the trial she had a nasty fall and was unable to move. This led to another defining moment in the matter. Do we take the risk of adjourning the matter even further so that we can cross examine her, in person? Or, do we allow her affidavit to go in untested. Now, this is not just your average 5 or 6 page Affidavit. This was her Trial Affidavit, her evidence in-chief.

Keep in mind, she too was 87 years old and had her own health issues. After some deliberation we had decided to let her Affidavit go in untested. We just could not take the chance and delay this trial any further. Final submissions were made and then it was just a matter of playing the waiting game until the Judgement was handed down.

The Judgement was handed down in January 2011. While you can read the judgment here

I will give you the Cliff’s Notes version…next week in Part 3!...Just kidding, keep reading.

His Honour was persuaded by our client’s evidence and that of our witnesses and found that a de facto relationship did exist. His Honour states in paragraph 127

“The essential question that is required to be determined is whether the parties relationship is one of a couple living together, on a genuine domestic basis…it should therefore include the concept of the diversity of relationships that exist between couples within our society”.

His Honour acknowledged that while this relationship was not like other relationships with people who are much younger than they were, it did not mean that their relationship was any different i.e. looking at the diversity of a relationship.

When it came to determining the property division between the parties His Honour found in favour of our client’s partner, 85/15. Of course section 75(2) factors were no longer able to be applied as our client had died.

In my opinion, this case was never about the money. I would go so far as to say that this was ironically about love. It was about one man who was simply trying to prove that he was in a relationship with a woman that he loved. Yes they separated, but that’s a fact of life, it happens. But that does not mean a relationship did not exist or that love was not reciprocated between the two of them.

So why did I share this? Well, mainly to bring to your attention that you may be in a de facto relationship and you don’t even know it. My former employer, who was involved in this case, would often say words to the effect of “If you’re leaving your toothbrush at her place and she’s doing your washing then chances are you’re in a de facto relationship”. In other words you don’t have to be living in the same residence to be in a de facto relationship.

Section 13A(2) of the Interpretation Act 1984 states the following factors are indicators of whether or not a de facto relationship exists between 2 persons, but are not essential:-

  1. The length of the relationship between them;
  2. Whether the 2 persons have resided together;
  3. The nature and extent of common residence;
  4. Whether there is, or has been a sexual relationship between them;
  5. The degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  6. The ownership, use and acquisition of their property (including property they own individually);
  7. The degree of mutual commitment by them to a shared life;
  8. Whether they care of and support children
  9. The reputation, and public aspects, of the relationship between them

If you are unsure whether or not you’re in a de facto relationship, one where if you separate your partner may have a claim on your assets, ask yourself which factors above apply to you.

If you’re still unsure whether or not you’re in a de facto relationship after asking yourself the above, or if you’ve just realised that your toothbrush is at your partner’s place than contact us and we would be happy to explain your options.

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Saturday, 27 November 2021

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