and de facto relationships
The important distinction between de facto relationships and de jure (ie legal) marriages is that a de facto relationship has to exist in fact, whereas a de jure marriage persists until death or divorce bring it to an end.
Justice Windeyer, who has long sat in the Equity division of the NSW Supreme Court, has heard more than his fair share of cases about the existence of de facto relationships.
Here are a number of passing comments in a recent case where he had to decide whether a woman (the defendant) was the de facto partner of a man who had died without making a will. The man’s children denied the relationship, basically on the grounds that there had once been a relationship but it had come to an end – as evidenced by living arrangements, displays of affection or rather the lack of them, complaints by the deceased about the defendant, and his involvement with “other women.” At immediate stake was who should administer the estate, but presumably other entitlements under intestacy also depended on this.
12 As often happens in these cases a great deal of evidence and almost interminable cross-examination was directed to the sleeping routine, who used what bathroom, and where the particular clothes were kept for the period from 1998 to 2006.
And in relation to the daughter’s evidence about the state of the flat where the deceased lived with the defendant at the time of his death:
16 ….She gave the expected type of evidence about the bedrooms at Zetland. At least here there was only one bathroom so that it was not suggested it was not used by both the deceased and the defendant.
17 I should say now that I do not think the question of whether or not there is a de facto relationship can often be determined by the position of clothing or use of bathrooms. There are hundreds of married couples who keep clothing in different rooms; there are no doubt married couples who sleep in separate rooms, but have a committed relationship. There are many married couples who use different bathrooms and no doubt many more who wish that they could.
That last sentence qualifies as judicial humour, though query whether his Honour is being consistent here in applying generalisations about married couples to a case about a de facto relationship given his ultimate findings.
36 As in many of these matters the evidence adduced by either side, although it seems to some extent contradictory, is often generally truthful. It is just that people see things partly as they want to see them or as they think they should see them and partly in accordance with statements made to them by the persons involved in a relationship. It is usually not possible to reject the evidence of witnesses of one side and accept the evidence of witnesses of another in coming to a decision as to whether or not a de facto relationship has been established. It is also necessary to bear in mind it is incorrect to think that perfection and harmony is a necessary requirement in de facto relationships but not in married relationships…. Nevertheless for a de facto relationship to continue to exist it is necessary for there to be a sense of commitment on both sides.
37 While what I have said about witnesses having different views and accepting the truth of what they are trying to say, is I think correct, that does not always apply to the evidence of the parties to the relationship. While the defendant’s evidence was that she did not know the deceased had a continuing relationship with his then wife and I accept that evidence, I do not accept her evidence of her view of the relationship with Mrs O’Brien. I do not accept her evidence that the deceased did not spend nights away and I accept the evidence of Mrs O’Brien as to that. I do not accept her evidence that she thought that the deceased was just going off on Fridays to take the washing to the laundry. I accept the evidence of Mrs O’Brien that she did the deceased’s washing and ironing, and the clothes which he brought back could hardly have looked as though they were coming from a professional laundry. It is therefore obvious that the defendant must have known that the relationship was not as secure as perhaps she would have wished it to be or wished to think that it was. In fact in her affidavit of 1 November 2007, she admitted as much saying in paragraph 133:
133. Perhaps I realised, to some extent over the years, that Luis may not have always been honest with me about his relationships with other women. However, I loved him and I believed that he loved me and that such infidelities that occurred would, as I understand in fact occurred, pass. So far as I was concerned, I was in a committed and sharing long term life partnership but one in which my partner was incapable of constant sexual fidelity. I had to and did grow to accept that that was the way it was with Luis.
On the perennial problem, of which this case was a spectacular example, of statements by the deceased to either his children or to other women discounting the relationship:
42 In reaching a conclusion on this question the evidence of witnesses or statements made by the deceased must be treated with great care. Usually, as here, the statement is made to one person only, which makes it easy to give evidence which may not be true. For instance, evidence of statements of the deceased that his relationship (whatever it was) with the defendant was over could not be accepted as true if the evidence of the defendant is accepted that the deceased was regularly in bed with her engaging in sexual intercourse. Generally speaking I accept that part of her evidence.
A more contentious point:
43 The strongest evidence of there being a de facto relationship at the time of the move to Zetland is that the parties both moved there, although the relationship with Mrs O’Brien and Mrs Quijarro continued as before. But against that is the evidence, which I accept, that the deceased instructed his accountant that the rent at Zetland be debited in equal shares to his loan account and to the defendant’s loan account.
Here his Honour is responding to the requirement to consider, under the statute, matters such as the extent of any joint finances. I wonder whether that is appropriate these days. That is, joint finances, if present, can indicate a relationship, but their absence cannot indicate the absence of one. After all, why shouldn’t people have separate bank accounts as much as they have separate bathrooms?
46 It is an extraordinary relationship where a man can share a bottle of champagne by candlelight in bed and have sexual relations with one woman on the morning of his trip north to visit another woman and yet will die the next day in bed with that other woman to whom he had proposed marriage and with whom he has discussed a marriage date to take place some months later. Strange as it is I am of the opinion that whatever commitment there was to a joint life as a couple by the defendant, there was no such feeling or interest by the deceased at the time he died, who by then used the defendant as he wished and did as he wished.
Now that seems really unfair.
And while judges are people like Justice Windeyer (hint: he was colonel of the University of Sydney Regiment) are on the bench, as a practical matter it may well be the law. That is, if you think you are a de facto but your partner has deceived you or you have been prepared to overlook what you see as mere lapses or deviations by the other person, you may really be nothing. You need to be legally married to be able to do that. That seems a very strange result indeed, since it means that, contrary to all the stuff that conservative moralists say and indeed some empirical observations about how many people actually live, the requirements for fidelity in a de facto relationship are in fact higher than those which apply as a matter of fact in a great many de jure marriages (as a matter of law, infidelity is irrelevant to these).
There are some obvious repercussions to this, including in relation to the reform of the law for gay unions however described and arguments about that.