Article by Manny Wood published in the Coffs Coast News Of The Area on 15 November 2024.
Larry and Sally enter into a de facto relationship when they are in their 50’s. They each have children to previous relationships.
Ten years later, Sally begins a cognitive decline and is soon diagnosed with a progressive form of dementia. Larry and Sally occupy separate rooms before sadly, Sally is placed into an aged care facility to care for her high needs.
Larry continues to reside in the matrimonial home, owned solely by Sally.
Larry purchases a van, with a wheelchair lift and uses it to transport Sally.
The NSW Trustee and Guardian (TAG) is appointed as Sally’s financial manager and wish to sell Sally’s home to fund the payment of a refundable accommodation deposit (RAD) to the aged care facility. Payment of the RAD would stop the need to make daily accommodation payments.
Larry refuses to vacate the property. He makes payments towards Sally’s daily accommodation costs. He regularly visits Sally and assists her at meal times.
TAG commences proceedings under the Family Law Act, seeking a declaration that the relationship has broken-down and seeks an order that the property be sold.
Larry denies that there has been a breakdown of the relationship.
TAG argues that due to Sally’s state of health and given that they now live apart, that she is incapable of participating in a de fact relationship with Larry.
The Court affirms that a de facto relationship may continue even though the parties reside at different locations and despite one of the parties suffering from a severe illness.
The Court observes that although the parties historically kept their assets separate from each other, Larry had, prior to TAG’s appointment as financial manager, secured a power of attorney, giving him substantial control over Sally’s assets and did not make “necessary and desirable adjustments” to ensure Sally’s interests were properly served.
The Court ultimately rules that while a relationship of affection continued to exist between them, it no longer fell into the legal definition of a de facto relationship and ordered the sale of Sally’s home.
Email Manny Wood at manny@tblaw.net.au or call him on (02) 66 487 487. This fictional column is only accurate at today’s date and is not legal advice.
