Declaration made where the relationship occurred from “time to time” over a long period

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holding-handsThe Supreme Court of South Australia has made a declaration that a relationship existed between the plaintiff and a deceased person (referred to as K) entitling the plaintiff to make a claim for provision out of K’s estate in circumstances where they were in a sexual relationship “from time to time” over a lengthy period.

The plaintiff and K lived together in a sexual relationship from time to time over a period of about 38 years. Prior to meeting K, the plaintiff had two relationships with women, and had a child from each relationship. The plaintiff married three further times during the period he knew K. According to the plaintiff, he maintained a relationship with K throughout each marriage.

The plaintiff sought a declaration pursuant to the Family Relationships Act 1975 (FRA) that he and K were, on a given date, domestic partners and, if such a declaration was granted, an order for provision out of the estate of K.

During the proceedings, the parties reached a compromise and sought a declaration that the plaintiff and K were in a relationship from 1 February 1992 until 1 December 1996.

Despite the declaration sought by the parties, the court made it clear that it had to be satisfied that the plaintiff was entitled to the declaration sought and, if made, that he was entitled to the provision out of the estate contemplated by the parties. Accordingly, it was not a matter of simply making consent orders as the court had to be independently satisfied that the plaintiff came within the provisions of each statute.

Despite finding that the required relationship for a declaration did not exist at the date of K’s death or at an earlier time, the court considered whether it was in the interests of justice that a declaration be made. The court referred to the nature of the relationship between the plaintiff and K over the period and noted that there were significant periods during which it could be said that they lived together in a close personal relationship, namely during the periods they lived together (February 1973 to April 1974, August 1985 to January 1987 and January 1989 to March 1990).

The court found there was a mutual friendship, including a sexual relationship, which manifested itself often from 1973 to 2011. The court also noted that the plaintiff looked after K when he was unwell.

Another factor which counted “very much” in the plaintiff’s favour was that the defendants, in anticipation of a declaration being made, settled the plaintiff’s claim.

In all the circumstances, the court found it was in the interests of justice to make a declaration that there existed between the plaintiff and K the required relationship entitling the plaintiff to make a claim out of K’s estate.

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Categories: Family Provision, Intestacy Laws, Marriage and De Facto, Relationship, Wills, Wills & Probate
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