When a de facto relationship exists - even though you don't live together

Not only can an estate challenge be made by someone who is a blood relative of the deceased (so long as they satisfy one of the categories of relatives set out in the definition of “eligible person”, as defined in section 57 of the Succession Act 2006 (NSW)), but it can also be made by someone who is able to establish that they were the deceased's de facto, or otherwise had a close personal relationship with the deceased, at the time of the deceased’s death.

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

Ms Joan Violet Gardener died intestate (without a Will) in June 2017, leaving a net estate worth approximately $3.5 million.   Mr Juna Jose Bernengo made an application for provision from the estate because he claimed that he was in a domestic partnership with the deceased immediately before her death, and as the deceased’s spouse (with the deceased not having any children), that provision should be the entire estate (based on section 111 of the Succession Act).  The claim was defended by Mr Edward Henry Thomas Leaney, the deceased’s nephew, on behalf of himself and the other nieces and nephews who would otherwise be entitled to the estate under the intestacy provisions of the Succession Act.

The issue therefore was whether Mr Bernengo was in fact the deceased’s de facto spouse at the time of her death, which required a consideration of the laws specifying the requirements to find a de facto relationship.

Who is a spouse?

Section 104 defines a spouse of an intestate person as a person:

• who was married to the intestate immediately before the intestate’s death; or
• who was a party to a domestic partnership with the intestate immediately before the intestate’s death.

Section 105 defines a “domestic partnership” as a de facto relationship that:

• Has been in existence for a continuous period of 2 years; or
• Has resulted in the birth of a child.

Section 21C(2)- of the Interpretation Act 1987 (NSW) provides that a person is in a “de facto relationship” with another person if:

• They have a relationship as a couple living together; and
• They are not married to one another or related by family.

Although not relevant to this dispute, it is worthwhile to note that a de facto relationship can exist even if one of the parties is married to, or in a registered relationship with, someone else.

Section 21C(3) sets out a number of circumstances that are relevant to the determination of whether there is a de facto relationship, including the duration of the relationship, the degree of mutual commitment to a shared life, and the reputation and public aspects of the relationship.

When are you considered to be “living together”?

Whilst it is necessary for a couple to “live together” in order for a de facto relationship to have been found, it is not necessary for them to live together full time in order to be considered as such.  The Court in this instance looked at a number of past matters when this issue was considered. Set out below are some of those cases, the salient facts of each, and comments made by the judges:

• Weston v Public Trustee (1986) 4 NSWLR 407
  • The deceased male and the claimant female were in a relationship for over 30 years.
  • The deceased owned a flat in Bondi, and the claimant owned a flat in Homebush.
  • In a typical week, the deceased would stay virtually all weekends and 2-3 nights a week with the claimant at Homebush, and then spend 2-3 nights a week at Bondi (once he had retired).
  • He would let the claimant know his movements, she would cook him meals to eat at Bondi, they book holidays together, they shared some expenses, and purchased things for each other.
  • The Court stated:

“One must look at the whole picture bearing in mind the circumstances in which the parties were living … The [claimant] says that it was an exclusive relationship and there is no material to indicate otherwise.  The evidence shows that when one was sick, the other one would look after the sick one. The evidence shows that generally speaking, though both the [claimant] and the deceased valued their independence and the deceased to a great degree did what he liked, he would listen to what the [claimant] said as to her wishes and generally fall in with them.”

Held – the claimant qualified as a person who was living with the deceased at the date of his death on a bona fide domestic basis as his wife.

• NSW Trustee and Guardian v McGrath [2013] NSWSC 1894 
  • The deceased and the claimant had an intimate relationship for 13 years
  • The deceased and the claimant only lived together on the weekends and had an annual 2 week holiday together. They only saw each other 2 other days each week and spoke every night on the telephone when physically apart.  They cared for each other in periods of deteriorating health.
  • The Court stated:

“The concept of living together does not relate to sharing a particular residence but … whether a couple manifests a relationship of ‘coupledom’ which involves the merger of two lives.”

Held – there was a de facto relationship

• Ward v Anderson (Supreme Court (NSW), Waddell CJ in Eq, 6 June 1989, unrep)
  • The persons maintained separate residences for much of their relationship.
  • The claimant female lived approximately 3-4 nights (occasionally 6 nights) a week with the deceased male at his home and part of the time at her house, approximately 35 minutes away. The time spent at the deceased’s house depended on her work schedule.
  • The claimant moved most of her clothes and various household appliances to the deceased’s home. The deceased kept some clothes at the claimant’s house.
  • Their financial affairs were kept separate, but they each paid for household and other expenses as convenient.
  • The persons were engaged. Friends and family otherwise accepted the claimant as the deceased’s wife.
  • The Court stated:

“Were it not for the circumstances that the [claimant] kept and used her house … there could be no dispute that the [claimant] was living with the deceased at his wife on a bona fide domestic basis.”

Held – there was a de facto relationship

• Forsyth v Sinclair [2010] VSCA 147
  • The relationship was one of “deep and intimate affection”, where their love for each other was considered to be “the shaping force of their lives” and of “crucial significance”.
  • The persons combined aspects of the households, keeping belongings in each other’s houses, spending several nights a week in each other’s homes.
  • Others considered it to be a “long standing, close and intimate relationship”, as an exclusive sexual relationship.

Held – the persons were in a relationship, notwithstanding that they had kept separate dwellings

• Vaughan v Hoskovich [2010] NSWSC 706
  • The persons chose to live together only for a small part of each week.
  • The Court stated:

“The maintenance of separate residences is not inconsistent with the parties living together as a couple, provided that there is sufficient shared residence over a long enough period to amount to ‘living together’.  Parties can live together for part of a week and also live together, for part of a week.  Although living apart for some periods, they can still live together as a couple if all the circumstances indicate that they are ‘a couple’. I accept that the phrase ‘living together as a couple’ connotes that the persons will live together in a place which can be said to be their home, but a person can have more than one home.”

The Court then considered the elements of “living together as a couple”, and the importance of a romantic relationship – in terms of love or intimacy – between the persons.  A diminution of the initial “romantic characteristics” will not of itself mark the end of “living together as a couple”.  As stated in the case of Vaughan:

“For two people to live together as a couple means that they live together and that, at least initially, they be united by love or be living together in a romantic relationship … At least if the partners remained living together, the fading of love or romance need not spell the end of a de facto relationship.”

Likewise, issues such as infidelity do not undermine or compromise the de facto status of a relationship which would otherwise properly be characterised as such.

Did the deceased and Mr Bernengo have a de facto relationship?

The elements of the relationship were as follows:

• Mr Bernengo was in a relationship with the deceased’s daughter, Gaye-Marie, from approximately 1988 until her untimely death from a brain tumour in 2007. At the time, Gaye-Marie lived in a self-contained downstairs unit at the deceased’s property at Cammeray.  Mr Bernengo lived there approximately 3-4 days per week, and otherwise at a flat he rented at Milsons Point.
• Following Gaye-Marie’s diagnosis in 2004, Mr Bernengo spent more time at the Cammeray property, and as a result, more time with the deceased.
• Following Gaye-Marie’s death, Mr Bernengo became closer with the deceased, and the deceased asked Mr Bernengo to move upstairs into the bedroom next to the deceased.
• They would frequently dine out and attend other social events together, often in the company of the deceased’s step-daughter.
• Mr Bernengo built a house on a property he had purchased with Gaye-Marie prior to her death, and divided his time between that property and the Cammeray property.

The Court considered evidence of the relationship such as:

• Video footage of the deceased’s funeral service, noting Mr Bernengo’s involvement in the service, and the fact that he paid for the funeral;
• Friends, family and neighbours’ recollection of the relationship;
• Telephone records;
• Bank and superannuation records;
• Medical records – which included statements made by the deceased that she lived alone and that her son-in-law (ie Mr Bernengo) visited and stayed once every 2-3 weeks (although it was found that this was likely because she did not want to disclose the relationship);
• Photographs; and
• Affidavit evidence.

It was found that:

• This was a “borderline case”;
• Mr Bernengo did not pay rent at the deceased’s property, and was not expected to. He contributed to the maintenance of the property and its garden, without payment or expectation thereof;
• The wardrobe at the property contained his clothes, and the garage contained his tools;
• There was a sexual relationship between them;
• Despite their separate homes, they were in regular communication;
• There was a very high degree of mutual commitment to a shared life between them;

The Court held that Mr Bernengo was indeed the deceased’s spouse, and pursuant to the laws of intestacy, was granted the entirety of her estate.

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This case provides an interesting a comprehensive analysis of the Court’s approach when determining whether a de facto relationship exists (for the purposes of an estate challenge), particularly where the couple does not permanently live together on a full-time basis.  These matters should be taken into account if you are planning for your estate and you may be considered to be in a de facto relationship, even though you do not permanently live with your partner.