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May 8, 2016

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Case Note Corner: Getting the Facts on Defacto Relationships

Key Takeaways

 

  • The High Court of Fiji in the decision of Samou v Estate of Leslie Allinson [2019][1] has provided some great insight into the structure and dynamics of what constitutes a de facto relationship.

  • In this case the Court took a “holistic” approach to determining what constitutes a defacto relationship and pointed to the need to have a “mutual commitment to a shared life”.

  • The case has now been appealed and it will be open to the court to review its decision in light of legal principles.

 

The Case

 

In this case, Mr A had been in a relationship with Ms S from 1992 to 2001. After the relationship had ended, Mr A and Ms S had continued to live in the same house even though they were separated. Haniff Tuitoga Lawyers represented the Estate of Mr A and were successful in establishing that the relationship had ended in 2001 as well as showing that cohabitating under the same roof, on its own, was not enough to justify the existence of a defacto relationship.

 

The High Court had adopted a holistic approach in assessing the characteristics of the relationship between Mr A and Ms S. In doing so, the Court could not ignore the fact that even though Parties had shared a common dwelling, there was still no tangible evidence to demonstrate that Mr A and Ms S had shared a “mutual commitment to a shared life”.

 

The evidence that was gathered in the 2 day trial demonstrated that both Mr A and Ms S (a) did not have a sexual relationship with one another after the relationship had ceased, (b) had no longer shared personal information about themselves with one another, (c) were no longer exclusive because Mr A had commenced an intimate relationship with another individual after separating and (d) in public, mutual friends understood, that they were no longer a couple.

 

The High Court had also agreed with the closing submissions of Mr Tuitoga in which he had cited the case of Public Trust v C[2] from New Zealand. This case also exemplified that a holistic approach ought to be adopted in assessing the elements of a defacto relationship as every relationship is unique. Similarly, the New Zealand Court noted that even though Parties had been living together for more than a decade, they were not living as a couple because there was no mutual commitment to a shared life.

 

In the same way, the High Court of Fiji viewed the shared dwelling between Mr A and Ms S, after the separation, as a gesture of kindness but it did not demonstrate a mutual commitment to a shared life because Parties were living separate lives under the same roof.

 

Conclusion

 

The decision in Samou v Estate of Leslie Allinson [2019] demonstrates a ‘progressive’ approach taken by the Court in determining what constitutes a defacto relationship. The case highlighted that while factors which are typically considered the ‘hallmarks’ of a defacto relationship are relevant, they in and of themselves are not enough to prove the existence of a defacto relationship. Rather, a ‘holistic’ assessment ought to be undertaken of the relationship having regard to the relevant facts.  

 

However, the case has now been appealed and it will be open to the court to review its decision in light of legal principles.

 

We note this article is for general information and should not be relied upon as specific legal advice. For a personalized and confidential advice about your rights following the breakdown of your relationship, please contact our team at Haniff Tuitoga Lawyers.

 

[1] FJHC 16; Probate Action 37 of 2012 (25 January 2019)

 

[2] [2009] NZFLR 514 (HC)

 

 

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