De-facto relationships are recognised throughout Australia, however the Court is often asked to determine whether a de-facto relationship exists in particular circumstances. This is an important question as it is estimated that over 1.9 million Australians over the age of 18 currently live in a de-facto relationship.
Queensland legislation, namely the Acts Interpretation Act 1954 provides a list of circumstances that may be taken into account by the Court when determining whether two people have been living in a de-facto relationship namely:-
- the nature and extent of their common residence;
- the length of their relationship;
- whether or not a sexual relationship exists or existed;
- the degree of financial dependence or interdependence, and any arrangement for financial support;
- their ownership, use and acquisition of property;
- the degree of mutual commitment to a shared life, including the care and support of each other;
- the care and support of children;
- the performance of household tasks;
- the reputation and public aspects of their relationship.
A recent Queensland Court of Appeal Decision, Spencer v Burton [2015] QCA 104 looks closely at the above circumstances and the question of what is a de-facto relationship for the purposes of the Succession Act 1981 (Qld).
Sharon Burton, the deceased, died on 6 July 2012 without leaving a Will. Kent Spencer was granted Letters of Administration on the basis that he was her de-facto spouse. Sharon’s mother successfully challenged this appointment, the grant to Kent was revoked and she was then granted Letters of Administration. This decision was appealed by Kent.
The emphasis placed on each of the criteria above was scrutinised by the Court of Appeal, particularly the emphasis that had been placed on financial and property matters. It was considered that the primary judge, who heard the application by Sharon’s mother, did not assess a large amount of evidence including witnesses’ statements regarding their relationship and information on hospital forms completed by the deceased in March 2011, 17 months before her death that named Kent Spencer as her de-facto.
Lyons J found that not all of the criteria above are “required to be present before a finding can be made that a couple are living together on a genuine domestic basis, there was no necessity for there to be any intermingling of finances and property.”
The Court of Appeal ordered that the previous judgment be set aside and that the matter be remitted to the trial division for a determination by a different judge.
This decision highlights not only the various factors that are taken into account when determining whether a relationship is a de-facto relationship but also the importance of having an up to date Will as it would not have been necessary for Kent Spencer to make the application for Letters of Administration if Sharon Burton had made a Will naming him as executor and setting out her wishes.
