Case

Which case won?

casea
The case for the son (executor)
  • My father was never in a de facto relationship with the woman who was employed as his carer. They kept their finances separate and my father never referred to her as anything other than his carer.
  • I never saw them display any affection towards one another in a romantic way or use endearing names to one another.
  • Even if they were a de facto couple for a time, that relationship had ended before my father died.
  • If she lived in a separate room, how could they have been in a de facto relationship?
  • It’s true that in 2003 my father declared that he was living in a de facto relationship with the woman, but that was only to help her obtain permanent residency.
  • My father told me that “as soon as she got her citizenship she turned nasty“. He planned to get rid of her and employ another carer, because he became increasingly frustrated by her neglect of him.
  • Neighbours witnessed many arguments between the two, particularly in the final years of my father’s life, with the police being called on many occasions.
  • In 2015 my father declared his marital status to the Department of Veteran’s Affairs as “widowed”, not as “living in a marriage-like relationship”.
  • My father deliberately did not include the woman in his will and she is not entitled to anything. As his son, I am the executor and beneficiary of the will.
caseb
The case for the woman
  • I am eligible to make a claim on my partner’s property, as we were in a de facto relationship for many years and were still together when he died.
  • We spent a lot of time together on recreational activities such as shopping, going to the movies, going to the beach and eating at restaurants and cafes. We travelled overseas together and went on cruises.
  • I did spend nights in his room, and we did have a sexual relationship.
  • Notes made by his doctor and the hospital refer to me as his “partner” or his “wife” because that’s what I was.
  • My partner signed a statutory declaration in 2003 to say we were in a de facto relationship.
  • Our de facto status is confirmed by the fact that many of our bills were in joint names.
  • It’s true that in 2015 he declared to the Department of Veteran’s Affairs that he was widowed, rather than in a de facto relationship, but he only did that so he wouldn’t lose the single rate of the pension.
  • As my partner’s dementia progressed he became more and more difficult to live with, hiding my passport, sometimes sabotaging my car or in other ways preventing me from leaving when I had to go to work. Nevertheless, I stuck by him despite these difficulties till the end.
  • Even if our romantic relationship ended before he died, we were still in a close personal relationship and had been a de facto couple for many years.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a33%
case b67%

Expert commentary on the court's decision

“Poignantly, the very facts that the executor sought to rely upon to disprove the existence of a de facto relationship – disharmony, frequent domestic disputes, complaints, threats and police intervention – were the same facts that convinced the Court of Appeal that a de facto relationship had indeed existed between Ms Sun and Mr Chapman.”
Court of Appeal overturns initial decision

In Sun v Chapman [2022] NSWCA 132, the Court of Appeal granted leave for Ms Wei (Rose) Sun to appeal the initial decision, in which it was found that she had not been in a de facto relationship with Mr Robin Alan Richard Chapman, who had initially employed her as his carer.

The court granted leave for Ms Sun to bring forward more evidence.

Factors suggesting existence of de facto relationship

The court found that the evidence presented to it was not inconsistent with Mr Chapman and Ms Sun having been in a de facto relationship. The court noted that given the 40 year age difference between the two, it was unsurprising that he did not disclose the relationship to his adult children.

The court found that the fact that Ms Sun’s teenage son had lived with the couple for two years while he finished his schooling was inconsistent with the relationship between Mr Chapman and Ms Sun being merely that of patient and carer.

The court also noted that the relationship of patient and carer is not inconsistent with a continued relationship of husband and wife or de facto husband and wife.

Further, the court observed that a de facto relationship does not end because one partner has to live separately from the other for reasons of health. Nor does a de facto relationship cease to be such because it “becomes fractious and the parties cease to love each other”.

Continued provision of care to grumpy and irascible old man

The court noted that even though the romance of the relationship had come to an end, the couple continued to live together. While the relationship was not a loving one in the later years, that did not mean that they had ceased to live together as a couple.

While Mr Chapman’s dementia and depression made him more “grumpy and irascible” than he had previously been, Ms Sun continued to provide him with care, notwithstanding their frequent arguments.

In the view of the court, this was consistent with the continuation of their de facto relationship, rather than inconsistent with it: just as a wife might continue to look after a demented and grumpy husband.

Lack of harmony in relationship enhances claim for provision

The court took the view that the deterioration of the relationship between Mr Chapman and Ms Sun was not a reason for reducing the provision that would otherwise be appropriate for her. Rather, it found that that deterioration would have increased the burden of the relationship on her.

The court found that the last years of the relationship must have been a difficult time for Ms Sun and that “the lack of harmony in the relationship enhances rather than diminishes her claim for provision”.

Consortium vitae not severed by complaints, threats or disharmony

In its analysis of the relationship between Ms Sun and Mr Chapman, the court addressed the notion of the consortium vitae – that is, the marital relationship, or state of “coupledom”.

Pointing out that the relationships of carer and de facto spouse are not mutually exclusive, the court noted that it is not uncommon for the physical and/or mental decline of one spouse to result not only in the dissipation of romance, but also in the other becoming a “carer”. This does not sever the consortium vitae. Neither does disharmony in a de facto relationship bring it to an end.

The court noted that statements such as “I’m leaving you” or “Get out” do not sever the consortium unless they are acted upon.

Mr Chapman’s complaints and threats to obtain a substitute carer were never acted upon. The consortium vitae was never severed and the de facto relationship continued until Mr Chapman’s death.

Arguments not atypical of marriage-like relationship

The well-documented arguments between Ms Sun and Mr Chapman were not atypical of, let alone inconsistent with, a marriage-like relationship.

The judgment of the Court of Appeal concluded:

In my view it can fairly be said that for the last two decades of his life no-one was closer to the deceased, and no-one did more for his welfare, than Ms Sun. Factors warranting the making of her claim were manifest.

The court ordered that provision be made out of the estate of Mr Chapman in favour of Ms Sun in the sum of $555,000 to enable her to pay off her mortgage.

Chaos and disharmony of marriage-like relationships

Poignantly, the very facts that the executor sought to rely upon to disprove the existence of a de facto relationship – disharmony, frequent domestic disputes, complaints, threats and police intervention – were the same facts that convinced the Court of Appeal that a de facto relationship had indeed existed between Ms Sun and Mr Chapman.

As the court observed, “marriage-like” relationships are not necessarily romantic or harmonious. In fact, in this case the proven disharmony enhanced, rather than weakened, Ms Sun’s claim on Mr Chapman’s estate.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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