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Victorian Court grants letters of administration to de facto spouse in favour of nephew

The Victorian Supreme Court in June handed down its decision in Jasarevic v Nesovanovic [2017] VSC 267, a matter in which Rada Nesovanovic, would-be domestic partner of the deceased Nail Hamidovic, had applied for revocation of letters of administration previously granted to Nail’s nephew, Jasmin Jasarevic, who would otherwise be the sole beneficiary of Nail’s estate under the laws of intestacy.

In addition to some procedural matters, Justice Zammit was required to decide whether or not Rada was Nail’s partner at the time of his death, within the meaning of section 51(1) of the Administration and Probate Act 1958 (Vic), whereby a registered or unregistered “domestic partner” of an intestate deceased who does not leave any child is entitled to the residuary estate of the intestate.

Was Rada the domestic partner of Nail?

The meaning of “domestic partner” for the purposes of applying for letters of administration is not strictly defined, but rather a matter for the Court to decide having regard to all the circumstances of the relationship, including the degree of mutual commitment to a shared life, the duration of the relationship, the nature and extent of common residence, the reputation and public aspects of the relationship, and other such factors as listed in section 35(2) of the Relationships Act 2008 (Vic).

Further, as His Honour observed, unlike a legal marriage which is presumed to continue until legally dissolved, a party asserting the continuance of a de facto relationship must positively prove the existence of its defining characteristics.

Rada and Nail commenced their relationship shortly after they met in 1990. Rada had been educated to a primary school level only in the former Yugoslavia, migrated to Australia in 1971, but had no file notes, diary entries, emails or the like in the relevant period, has limited English and was 85 years old at the time of judgment. Although, as His Honour observed, “her evidence on some issues was incomplete and, on some other matters, inconsistent”, His Honour found Rada to be a credible witness.

After considering all of the evidence, including the affidavit and viva voce evidence of friends and family members of both parties, His Honour found “a loving, committed relationship which was observed by third parties to be a genuine domestic relationship”, and granted new letters of administration to Rada.

The decisive factors cited by His Honour in reaching this conclusion were:

  1. the duration of their relationship;
  2. the public conduct of their relationship as a married or de facto couple;
  3. that both remained in the room during one another’s medical appointments;
  4. that they were sexually active together, travelled together, attended clubs on a weekly basis together, celebrated special events together and shared every day domestic activities together until Nail’s health deteriorated from 2011.

His Honour further observed that separate living arrangements, the separation of finances, and assumption of a carer role are not evidence to displace the existence of an otherwise genuine domestic relationship.

The legislative framework in New South Wales is very similar to that considered in this Victorian Case, albeit NSW preferring the term “de facto spouse” to “domestic partner”, with the exception of the treatment of separate living arrangements. Section 21C(2)(a) of the Interpretation Act 1987 (NSW) requires persons in a de facto relationship to “have a relationship as a couple living together”, and is different to the position in Victoria whereby living together, as Justice Zammit said, “is one factor among many.”

Joshua Dale, Associate

Nathan Gately, Solicitor

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