How do you prove your love? With a Will.

Nowadays, a de facto relationship is almost as good as married without the marriage certificate. But unless you register your de facto relationship, how do you prove that you actually have one? And why is this important?

In particular, why it is important when you die?

If you die without a Will, the rules of intestacy determine who inherits your assets and property.

  • Section 111 of the Succession Act (“the Act”) provides that if a person dies intestate leaving a spouse but not children, the spouse is entitled to the whole of the estate.
  • Section 104 of the Act defines a spouse to include as person who was in a domestic partnership with the deceased immediately before the death.
  • Section 105 of the Act goes on to define a domestic partnership as a de facto relationship that has been in existence for a continuous period of 2 years, or which has resulted in the birth of a child.

This means that unless there is a child of the relationship, to receive their share of the estate, the partner must prove that they have been in a de facto relationship with the deceased for a continuous period of 2 years immediately before the date of death.

How do you prove this?

The Estate of the late Shirley Joan Violet Gardner provides a good example of the evidence that will be considered and the uncertainty that arises when trying to determine whether a de facto relationship existed or not.

Estate of the late Shirley Joan Violet Gardner; Bernengo v Leaney [2019] NSWSC 1324 

During her lifetime, Shirley Gardner was married three times. Her first marriage ended in divorce; her second and third husbands died. Shirley only ever had one child – a daughter born during her first marriage named Gaye-Marie.  

In 1988, when Gaye-Marie was 29 years old, she began a relationship with Juan Jose Bernengo who everyone called Marco. Marco was 20 years older than Gaye-Marie but for almost 20 years they were de facto partners.  

In late 2004, Gaye-Marie was diagnosed with a brain tumor.  

During the long 2 and a half years of Gaye-Marie’s illness, up until her death in 2007, Marco and Shirley spent a lot of time together and supported each other emotionally.  

Before her death, Gaye-Marie and Marco had lived in a flat on the first floor of Shirley’s house in Cammeray, Sydney. Six months after Gaye-Marie’s death, Shirley invited Marco to move upstairs with her, in the bedroom next door.  

From that time, until Shirley’s death in 2017, Marco was her closest companion. They went on holidays together, attended family events together, they went to plays and out to dinners together.  

Shirley died on 19 June 2017 at the age of 87. Her estate was worth approximately $3,500,000.  

Shirley died without a Will.  

Marco applied to the Supreme Court of NSW claiming to be Shirley’s de facto partner and seeking to receive the whole of her estate under the laws of intestacy. 

His application was opposed by Shirley’s nephews and nieces who were set to inherit the estate if it was found that Shirley had died without a de facto partner.

How to determine whether there was a de-facto relationship

Section 21C(3) of the Interpretation Act 1987 (NSW) provides that all of the circumstances of the relationship are to be taken into account, including: 

  1. The duration of the relationship,  
  2. The nature of their common residence, 
  3. Whether a sexual relationship exists,  
  4. The degree of financial dependence and support 
  5. The ownership and use of property 
  6. The degree of mutual commitment to a shared life 
  7. The care and support of children 
  8. The performance of household duties 
  9. The reputation and public aspects of the relationship.  

No one of the above factors will be determinative. They must all be considered and judged on a case-by-case basis.  

In this case the following facts were debated:

1. Separate houses

Shirley owned and lived in her home at Cammeray.

Marco owned a property in Rylstone, which is over 3 hours from Cammeray by car.

Marco would divide his time between the two properties. It was argued that he didn’t spend as much time there as he said he did and that, in fact, he was living separately from Shirley.

However, after analysing phone and bank records, the Court determined that Marco spent 55% of his time at Cammeray.

2. Finances

Marco and Shirley kept separate bank accounts.

While Shirley paid for most of the household expenses, she also purchased most of the whitegoods in Marco’s house and his new car.

Separate finances can be taken to be proof that a romantic relationship does not exist, but in this case the Court found it to be reasonable given their ages and the advanced stage in their lives when their relationship commenced.

3. Records

Marco executed his own Will in May 2017, in which he left nothing to Shirley and identified her in the will as his “mother-in-law” and not his partner or spouse.

In Shirley’s medical records Marco was identified as her son-in-law and Shirley was recorded as living alone.

Marco’s medical records named Shirley as his mother-in-law, although there are two records that refer to Shirley as his wife.

4. Marco’s statement

Evidence of a sexual relationship and details of that relationship may be required to assist the Court in determining whether or not a de facto relationship existed. This alone may be enough incentive to make a Will – to avoid the need for your sexual activities to be made public.

Marco explained that he started a sexual relationship with Shirley in around April 2008 when he was about 68 years old, and Shirley was 78. Over time health issues on both sides made sexual activity less frequent but that they were still intimate in other ways.

5. Reputation in the community

“Reputation and public aspects of the relationship” is a factor which the Court considers when trying to determine if a de facto relationship existed. This means whether the parties were known to friends and family to be a couple; did they behave like a couple in public? Did they present themselves to the world as a couple?

This was a hurdle in this case where Marco claims that the parties intentionally kept their relationship a secret.

Justice Bell stated that this was a borderline case that could have gone either way: there was strong evidence indicating a de facto relationship existed, but also that there wasn’t one.

The Court ultimately decided that there was a de facto relationship which had lasted for almost 9 years, commencing in 2008.

As a result of being found to be Shirley’s de facto partner, the Court found that Marco was entitled to inherit the entirety of Shirley’s estate.

Whether you agree with this decision or not, what we can more easily agreed on is that if Shirley had made a Will, we would at least know how she wanted her estate to be distributed after her death.

A sad element of this case is that it could have been avoided. In 2014 Shirley visited a solicitor with the intention of executing a Will. However, she never followed up on the consultation.

How do you prove your love?

If you have a de facto partner, prove your love for them by making a Will that clearly states what you want to happen to your estate.

Making a Will can avoid the need for lengthy, costly and stressful legal proceedings in which your partner will need to prove the existence of your relationship.

As the case of Shirley Gardner demonstrates, proving the existence of a de facto relationship is a difficult and uncertain undertaking, usually involving making public intimate and personal details of your relationship. The greatest gift you can give to your partner is to save them from the need to prove your relationship existed.

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The information in this article is not legal advice and is intended to provide commentary and general information only. It should not be relied upon or used as a definitive or complete statement of the relevant law. You should obtain formal legal advice specific to your particular circumstance. Liability limited by a scheme approved under Professional Standards Legislation.