Tuesday, August 31, 2021

Before too long ** - when not even living together is a de facto relationship

As previous posts have touched on, in order to be in a de facto relationship, two people need to ‘live together as a couple’.

The case of NSW Trustee and Guardian v McGrath & Ors [2013] NSW SC 1894 highlights that in order to live together as a couple, you do not necessarily have to share a particular residence.

As is often the case in disputes about whether a de facto relationship existed, following the death of one of the parties, the facts in this case were relatively complicated.

In summary:
  1. The couple, with their respective life spouses had been friends for around 20 years.
  2. When the respective life spouses passed away, the couple formed a close bond, which they shared for around 13 years.
  3. They never lived together as such, however the relationship was often described as ‘boyfriend/girlfriend’.
  4. They spoke every night on the phone.
  5. They would meet at least a couple of times a week.
  6. They would often holiday together.
  7. the couple also attended all family functions (for example, birthdays, Christmas day etc.) together for one side of the family - in relation to the other side of the family, there was significant estrangement and no family functions were attended.
Following a dispute about the distribution of the estate on the first of the couple to die, the entitlement of the other party to the relationship turned on whether he satisfied the definition of a de facto.

The court decided that although the case was borderline, there was sufficient evidence to support the existence of a de facto relationship, given how devoted the couple seemed to be to one another, even though they never chose to share a residence for a lengthy period of time.

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** for the trainspotters, the title today is riffed from the Paul Kelly song ‘Before too long’. View hear (sic):