Does a temporary separation by an unmarried couple end their de facto spouse intestacy status in relation to either one of their deceased estates?
Liam Dillon died in September 2020 aged 29 years with no will, survived by his mother Virginia Maiden and by Jane Grimley, his de facto partner.
Virginia made an application for letters of administration in intestacy shortly after his death, claiming Liam’s long term de facto relationship with Jane had ended in August 2020, only one month before his death.
Jane responded with a caveat against that grant in the Supreme Court in Rockhampton and sought her own grant on the basis that she was Liam’s surviving spouse.
The matter for determination by Justice Graeme Crow was whether Jane was Liam’s de facto spouse at the time of his death which in turn depended on a finding as to whether they were living together on a genuine domestic basis for a period of at least 2 years ending on Liam’s death.
The couple had been living together in rented premises in Rockhampton since 2011. Jane’s evidence was that one of Liam’s several emotional issues was that he was “possessive” and that “later in the relationship” their frequent fighting made things “not good” .
She decided she needed to leave the relationship temporarily.
There was no dispute that their relationship was that of genuine de facto spouses. In contention was whether that relationship had ended before Liam’s death.
Jane swore she told Liam in late August that she needed some time apart but it was not her intention to separate indefinitely.
All of this was accepted by the Court but it was Jane’s further assertions that they continued to reside together and shared the same bed that were not.
Liam had lost his employment as a bulldozer operator at BMA Blackwater just a week earlier but concealed this from Jane who only learnt of it from her father who also worked there.
Numerous text messages that followed the fallout from those events between Jane, Virginia and Liam’s sister, Shannon recorded that Liam wasn’t dealing well with their relationship having ended. Among other things, Jane has messaged that she had put a lock on her bedroom door.
Various text messages between the pair themselves made it clear that although they still resided together, they occupied separate bedrooms and were living separate and apart. Against Liam’s protests, Jane reiterated the relationship had ended and told him he must accept it and move on.
What’s more, in her police statement after Liam’s death, Jane is recorded as saying “Approximately 6 weeks ago, Liam and I separated.”
It transpired that Jane had emailed a notice of tenancy termination to their landlord in early September and neighbours observed she appeared to have vacated the property many weeks before her partner’s death.
Justice Crow conceded that physical separation or a short term break up does not of itself end a de facto relationship but had no hesitation in concluding a permanent breakup had occurred in that the pair no longer had a commitment to a shared life.
Both parties had, the judge reasoned, “publicly acknowledged to their friends that the relationship had ceased”.
He observed that de facto relationships are by nature “fragile” and “much more easily ended” than marriage which requires formal dissolution by divorce, regardless of a relationship having long-ago ended.
Although the continuation or termination of a de facto relationship is something “that is harder to pin down”, courts will need to adjudicate such issues well into the future.