If your partner died without a valid will and you wish to administer his or her estate or inherit, or you wish to make a claim on the estate, unless you were still married to him or her or had registered your relationships under the Relationships Register Act 2016, you might need to be declared that person’s domestic partner by the Court first.

A recent case[i] shows that being declared a domestic partner of another person is not as easy as you might think.

A lady made an application to be declared the domestic partner of a deceased at the date of his death so that she would then be eligible to seek to make a claim on his estate.

The deceased’s will, which was made about three years before he first went on a date with the lady, gave his estate equally between four associations and charities, and made no provision for the lady.

The lady and the deceased went on their first date on 8 January 2014. The deceased died 18 months later.

At the initial hearing, the Court held that she was not the deceased’s domestic partner. The lady then appealed that decision saying that the trial Court made a mistake in not being satisfied that she and the deceased were living in a close personal relationship, as well as not being satisfied that it was in the interests of justice for a declaration of domestic partnership to be made.

A person may be declared a domestic partner of another if they are:

  1. in a registered relationship with them; or
  2. living together in a close personal relationship and have done so for the past three years or a cumulative three years of the past four years; or
  3. living together in a close personal relationship and have had a child together; or
  4. living together in a close personal relationship and the interests of justice require that such a declaration be made.

‘Close personal relationship’ is defined in legislation[ii] as:

The relationship between 2 adult persons (whether or not related by family and irrespective of their sex or gender identity) who live together as a couple on a genuine domestic basis, but does not include

  • the relationship between a legally married couple; or
  • a relationship where 1 of the persons provides the other with domestic support or personal care (or both) for fee or reward, or on behalf of some other person or an organisation of whatever kind.

The Court must take into account various circumstances of the relationship between the two persons when making their decision, including but not limited to:

  • the duration of the relationship;
  • the nature and extent of common residence;
  • the degree of financial dependence and interdependence, or arrangements for financial support;
  • the ownership, use and acquisition of property;
  • the degree of mutual commitment to a shared life;
  • the care and support of children;
  • the performance of household duties;
  • the reputation and public aspects of the relationship.

The lady and the deceased had not registered their relationship, had not lived together for three years or three of the past four years, and did not have a child together. So her only choice was to argue option 4 above.

Therefore, it needed to be determined that firstly, the lady and the deceased were living together in a close personal relationship, and if so, that the interests of justice required the declaration be made.

The various circumstances listed above are “reminders of matters that possibly might be relevant”.[iii] A particular finding in relation to those circumstances is not necessary in determining the matter, and none of the matters listed “is necessarily of decisive significance”.[iv]

Justice Bampton said:[v]

This Court may not interfere with the Master’s findings of fact unless those findings are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”.[vi]

The Court on appeal found that the trial Court was well open to find that the lady and her father’s evidence (who she called as a witness) was not reliable or credible, and that there was no evidence that the Court could rely on to make the findings sought by the lady and be satisfied that she and the deceased were in a close personal relationship.

Some of the circumstances that supported her application were:

  • The lady and the deceased were in a romantic relationship;
  • Evidence of a priest that the deceased and the lady were in a relationship;
  • The lady and the deceased had discussed marriage, intended to marry at some point and had attended pre-marriage counselling;
  • The lady frequently stayed at the deceased’s house, took some items there and shared a bed together.

However, the following circumstances went against her claim:

  • Less than satisfactory evidence from the lady and unreliable evidence from her father;
  • No finding of financial dependence, or interdependence of arrangements for financial support;
  • No findings of joint ownership, use and acquisition of property;
  • No evidence as to performance of household duties, except that they enjoyed gardening;
  • The lady did not advise authorities or banks of a change of address;
  • The lady never received a set of keys for the deceased’s property; only access to keys;
  • Limited evidence as to reputation and public aspects of relationship;
  • The lady did not take her bankbooks to the deceased’s property and only took some of her clothes, some art and furniture and “nothing major”.

The trial Court found that there was not enough evidence to determine that the lady and the deceased’s relationship “had the hallmarks of a couple committed to each other on an enduring basis, such that it could be characterised as one where they were living together in a close personal relationship”.[vii] Even if this was the case, the Court was not satisfied that the interests of justice would require that such a declaration be made.

The full Court dismissed the lady’s appeal.

If you wish to make an application to be declared someone’s domestic partner, or are unsure whether you need to do this at all, please contact us on 08 8213 1000 to discuss.

[i] S, CM v M, SS & Ors [2019] SASCFC 20.

[ii] Family Relationships Act 1975 s 11.

[iii] Piras v Egan [2008] NSWCA 59 at [146] per Campbell JA.

[iv]  KQ v HAE [2007] 2 Qd R 32 at [16]; Sadiq v NSW Trustee and Guardian [2015] NSWSC 716 at [196] per Hallen J; Bezjak v Wyatt [2018] NSWSC 199 at [48] per Hallen J.

[v] S, CM v M, SS & Ors [2019] SASCFC 20 [33].

[vi] Fox v Percy (2003) 214 CLR 118.

[vii] S, CM v M, SS & Ors [2019] SASCFC 20 [10] per Bampton J quoting a Master of the Court.