October 2018 Newsletter

Welcome to our latest Newsletter

In New Zealand de-facto relationships are increasingly prevalent. In the 1996 Census there were just over 236,000 people in de facto relationships. By 2013 this figure had risen to 409,000. While the 2018 census won’t reveal how many Kiwis are living together as a couple until early next year what is clear today is the growing importance of the law applicable to de facto relationships and the legal remedies available for them in numerous different circumstances.

Indeed if you are in a de facto relationship, you might be wondering what options are available if your de facto partner has recently passed away without adequately providing for you after their death. Or alternatively what options do you have if your partner has omitted to provide for you in their will altogether? What if you were living together as a couple but did not own any property together?

Questions such as these highlight why the recent High Court decision in Moon v Public Trust and Anor [2018] NZHC 1169 represents an interesting development in New Zealand’s common law. Indeed the case has a unique precedent value for those in de facto relationships who either neglect to mention their de facto partner at all or fail to adequately provide for each other in their Wills prior to death.

In Moon the plaintiff had applied to the High Court for ‘proper maintenance and support’ from the estate of the women he had had a close relationship with for some twenty-seven (27) years prior to her death. The plaintiff had the misfortune of being left with only his former de facto partner’s ashes in her will but nothing else. The plaintiff, therefore, made his claim against the whole of the deceased estate except for her personal items and home which were to be gifted to the deceased older brother – another interested party to the estate.

The basis for the plaintiffs claim for proper maintenance and support under Section 4(1) of the Family Protection Act relied solely upon his view that he was a de facto partner who was living in a de facto relationship at the time of the deceased’s death. The deceased’s brother disagreed that there was a de facto relationship. However, there was agreement upon the following key facts:

The plaintiff and the deceased lived in their own separate homes and shared few common household possessions for the entire twenty-seven years of their relationship.
The couple maintained a sexual relationship until the deceased was diagnosed with cancer in 2015.
The plaintiff held the deceased’s enduring power of attorney and the deceased had been recognised as the plaintiff’s next of kin after a bicycle accident he had in 2016.
Though the deceased often (but did not always) refer to the plaintiff as a ‘friend’ in public he was recognised as her partner in her death notice and in a eulogy given by her younger brother at her funeral.
In the High Court, Justice Powell narrowed the issues in dispute to firstly whether or not the plaintiff and the deceased lived in a de facto relationship in the eyes of the law? If there was a de facto relationship, then the next issues were:

Whether in terms of section 4(1) of the Family Protection Act the deceased had failed to make adequate provision for the plaintiff in her will AND
If so, then, how should that inadequate provision best remedied?
With reference to the Property (Relationships) Act 1976 and the definition under section 2D Justice Powell revised through the helpful case law on the meaning and definition of a de facto relationship.

“The test must inevitably be evaluative, with the Judge having to weight up as best he or she can all of the factors – not only those contained in s 2D (which outline the factors to consider whether one has been living in a de facto relationship), but also any others there may be – and applying a common sense objective judgement to the particular case.”

“It is clear from both s 2D and the authorities that whether or not two people ‘live together as a couple’ for the purposes of s 2D does not require them to have been physically living together. Instead, cohabitation is simply one factor to be considered and is not a prerequisite for a de facto relationship.”

After considering these points amongst other Justice Powell concluded that the plaintiff’s characterisation of the relationship as a de facto one was in fact correct. This was due to the parties having been engaged in an ongoing sexual relationship maintained for most of the 27 years prior to the deceased’s death and the supporting views of family and friends. Justice Powell chose against placing particular weight upon the fact that there was lack of common ownership of property citing their respective separate living arrangements and businesses.

Consequently the application for proper maintenance and support could be heard and proceeded with. This claim would fall under two categories:

Economic needs and contingencies and
The need for recognition of belonging to the family or having been an important part of the life of the deceased.
After considering the authorities Justice Powell held that the deceased had breached her moral duty to the plaintiff and failed to provide adequately for the plaintiff in her will under both categories by leaving him only his ashes. While the claim was not sufficient strong to be awarded the whole of the estate Justice Powell was prepared to award the plaintiff a sum of $300,000.00 to be paid to him from the estate. The legal costs were then also to be met from the estate.

This decision has strong precedent value for those who can demonstrate factors of a peripheral de facto relationship, especially those who have experienced their de facto partner recently pass away and been left with very little. This decision also demonstrates how the law is prepared to find a pecuniary remedy where the circumstances dictate the economic and social needs of the person left out in the cold need to be alleviated.

If you have any query relating to your de facto relationship or if your partner has recently passed away or indeed on any other legal matter please do not hesitate to contact us to organise a time or to just discuss your matter over the phone.
Kind regards

The Directors

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