Huxtable v Hawkins: The “Living Together” Requirement

The deceased, David Michael Hawkins, died in 2015 aged 54. Pursuant to his will, the deceased’s estate was to be divided equally between his three children. The plaintiff made a family provision claim asserting that she had been in a de facto relationship at the time of his death. At the time of his death, the deceased and plaintiff had been in a romantic and sexual relationship; however, the deceased’s children disputed that the deceased and plaintiff had been living together.

A de facto relationship is defined in section 21C of the Interpretation Act, as follows:

A person is in a de facto relationship with another person if:

(a) They have a relationship as a couple living together, and
(b) They are not married to one another or related by family.

A de facto relationship can exist even if one of the persons is legally married to someone else or in a registered relationship or interstate registered relationship with someone else.

The test of “living together” has an important locational element and the nature and extent of the couple’s common residence is a factor which will be taken into account in determining whether the couple were living together. However, it is accepted that a de facto relationship may exist even though a couple only cohabitates together for a few days each week, or not all, or during a period of time when the demands of life intervene.

Justice Lindsay held that the plaintiff and the deceased, at the time of the deceased’s death, had a relationship as a couple living together, in this His Honour noted the following:

• The deceased worked as a pilot and during the relationship he split his time between various rentals and serviced apartments in Sydney and his farms, first in Mudgee and later in Crookwell. While the plaintiff lived in various properties in Sydney. It was clear that the living arrangements of the parties were unsettled, partly because of the deceased’s work and partly because the plaintiff was primary carer of three young children.
• Regardless, both parties spent time at each other’s residences and the following factors were considered to be indicative of a shared life. The plaintiff kept items of everyday personal property and helped decorate the deceased’s farm; she had a key to all the deceased various residences; the deceased redirected his mail to the plaintiff’s Sydney address; the deceased was actively engaged with the plaintiff’s parents and children; there had been some intermingling of their financial affairs; and the deceased contributed to the plaintiff’s household expenses.
• Although, the deceased had downplayed the nature of their relationship to his children and work colleagues, this was due to the deceased's desire to maintain a loving relationship and his embarrassment at the breakdown of his marriage.