The claimant said that he and the deceased had been in a secret de-facto relationship for 30 years, after they met in 1978 when the claimant was 17 and the deceased was 51.
The claimant said that he and the deceased had commenced a sexual relationship and that he had moved away from his family in the Philippines to live with the deceased’s family for several years. During the deceased’s final years, the claimant was living overseas.
During his life, the deceased had denied that the relationship was sexual in nature as he had apparently been embarrassed to publicly or openly acknowledge the relationship, for fear that it may not be accepted by their families or community.
The deceased had made no provision for the claimant in his Will, which solely benefitted the deceased’s children who defended the claimant’s allegations on the basis that their father and the claimant were “just friends” and that the claimant lived in their home as a boarder.
The trial judge found that the evidence established a same-sex domestic partnership, though it fell short of a de-facto relationship. He also accepted that the deceased had intended to resume this relationship as domestic partners with the claimant shortly prior to the deceased’s death.
The Court awarded the claimant provision of $300,000 out of the $2.5 million estate. This reflected a balancing of the nature of the relationships and personal circumstances of all the interested parties, and the probability of resumption of cohabitation actually occurring.
In South Australia, legislation defines a close personal relationship as arelationship between 2 adult persons (whether or not related by family and irrespective of their gender) who live together as a couple on a genuine domestic basis.
It is well worth noting that in South Australia, two persons may live together as a couple on a genuine domestic basis whether or not a sexual relationship exists, or has ever existed, between them.
In South Australia, the Domestic Partners Property Act regulates property rights for people living together in certain circumstances.
The Act gives new legal rights and duties both to same-sex and opposite sex de facto partners and also to other partners who may not be in a sexual relationship but live together on a genuine domestic basis as a couple.
Legal rights and duties automatically arise if the partners have been living together in this way for three years or more.
The new law covers:
- people who live in an opposite-sex (de facto) relationship;
- people who live in a same-sex (de facto) relationship;
- and people who live together as close companions or life partners.
The South Australian Act does NOT cover flatmates or boarding or commercial arrangements eg. live-in housekeeper or paid carer.
Accordingly, the secretive aspect of the Estrella case from Victoria would not be a factor against a claimant in this state. The Court can make a declaration that there existed between the claimant and the deceased the required relationship (putative spouse, de-facto spouse or domestic partner), which places the claimant in the position of being entitled to make a claim for provision out of the estate of the deceased.
The need for a specialist lawyer to assist with situations involving estate planning and estate administration in Adelaide has never been greater. Careful wording in your Will, and perhaps a Binding Financial Agreement, could save your loved ones untold grief and cost after you’ve gone.
Rod Genders is a senior Australian lawyer specialising in trusts, Wills and estate planning, accident compensation, and probate and deceased estate administration in Adelaide and all over South Australia. His boutique specialist law firm, which was founded on 1848, is one of the oldest and most respected in Australia. Rod is also a prolific author and speaker. Some of his articles and books on Wills, Probate, Trusts, Estate Planning, Asset Protection and Retirement Planning may be found at www.genders.com.au.
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