NSW: when is a de facto relationship?

Whenever relationships end, one of the issues sometimes raised is whether the parties were in the type of relationship alleged.

When it comes to marriage, proof is usually very easy: production of the marriage certificate.

When it comes to de facto relationships, including same sex relationships, it can at times be harder to prove that the parties were in a de facto relationship.

Earlier this year, the New South Wales District Court in May v Ndlovu had to decide whether a couple was in a de facto relationship. This came about because the man, Sean Teh, was killed. The woman, Ashleigh May, then sued because of his death. The defendant to the claim, Mr Ndlovu, took a preliminary point saying that Mr Teh and Ms May were not in a de facto relationship. If the defendant were successful, then the whole case would be over.

Matters were harder for Ms May because during the time she and Mr Teh had been in a relationship:

• each had been addicted to drugs of addiction;
• Ms May had lied to those treating her for addiction on the basis that she had separated from Mr Teh;
• each had improperly claimed Centrelink benefits on the basis that they were single;
• each had separate bank accounts;
• she had been unfaithful;
• they had had an earlier separation; but most importantly
• sometime in about 2000 Ms May started studying at UTS in Sydney, but Mr Teh rented a flat in Newcastle and started studying there.

Were they cohabiting?

District Court Judge Sidis held that they were:

Mr Teh rented an apartment in Hunter Street, Newcastle. The plaintiff rented
student accommodation close to UTS. The lease document that she signed indicated
that she rented a room only with shared kitchen, lounge and bathroom facilities.
The plaintiff said she left her belongings, including her two cats, at the
Hunter Street apartment. While Mr Teh signed the lease of the Hunter Street
apartment, the utility accounts were in the plaintiff’s name as were telephone
and internet service accounts. The plaintiff said she initially visited
Newcastle weekly then at less frequent intervals of about five to six weeks. Mr
Teh visited her in Sydney with greater frequency. He was journeying to one such
visit when the accident occurred in which he died.

8 She stated that they maintained their intention to marry and to put in
place the plans of which she had told Ms Faber. Mr Kim Teh said that he
continued to see the plaintiff and his son together after they commenced their
studies. He saw them in Sydney or at the Hunter Street unit. Ms Faber said she
maintained contact with the plaintiff and Mr Teh after their studies commenced.
She said she often saw them together, they continued to attend family functions
and they jointly organised a glider flight for her on her fiftieth birthday. Ms
Faber said she travelled to see the plaintiff at UTS on occasions in company
with Mr Teh and that the plaintiff stayed at the Hunter Street apartment at
weekends.

9 In addition to this evidence the plaintiff tendered a number of accounts
for telephone, internet and electricity services which were in her name and
which were addressed to the apartment in Hunter Street.

10 A photograph of a plaque on Mr Teh’s headstone was tendered. It refers to
him as a son, brother and partner. The plaintiff said that she was the partner
referred to on the plaque…

12 Looking at the facts which have been established in this case I am left
without doubt that the plaintiff and Mr Teh would have continued to live
together continuously had the decision not been made to study at different
universities. I do not accept that their choice to study apart converted the
relationship from a de facto relationship to one of girlfriend and boyfriend,
notwithstanding the evidence of the plaintiff’s infidelity.

13 Her belongings were in Newcastle at the Hunter Street apartment, her
cats were in Newcastle at the Hunter Street apartment, she stayed at the Hunter
Street apartment when visiting Newcastle, not at the homes of her parents. She
met with Mr Teh regularly in Newcastle or in Sydney. Accounts for portable
services such as internet and mobile phone were addressed to her at the Hunter
Street unit. This evidence indicated to me that she regarded the unit as her
permanent home and that that permanent home was with Mr Teh.