Court rules woman in extra-marital relationship with man is not his cohabitant

A woman who was in an extramarital relationship with a man before he died has failed in her High Court attempt to be legally declared his cohabitant.

In a ruling, Mr Justice Max Barrett said he did not agree with the applicant that the man had lived with her for at least five years in the lead-up to his death, which is required for being defined as a “qualified cohabitant” under the relevant Act.

The Act further requires that a married person has been living apart from their spouse for at least four of the previous five years. The judge did not see that this had happened.

Certain legal rights are conferred on long-term cohabitants when a relationship ends, either through a break-up or death.

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The judge set out the significant dispute between the man’s wife and the applicant over where he had lived and the nature of his relationships with the two women in the years leading up to his death.

He said the applicant claimed she had entered a “committed, exclusive, intimate relationship” with the man about a decade ago. She claims she began cohabiting and living with him about that time and they resided together as a couple until the man died in 2018.

The man’s wife accepted the woman and her husband were in an intimate relationship and that he had been involved romantically with other women. However, the wife said she and her husband were never estranged and continued to cohabit as married partners until his death.

She accepted their marital relationship was, or appeared to be, hostile “at times”, but it was not celibate and was ongoing until he died, she said.

As the man worked very irregular hours, the married couple always slept in separate bedrooms in their home, the wife said.

The wife accepted he stayed overnight with the woman “from time to time”, but she claimed he was “not the type of man who would or could have lived within the limits” of the accommodation where the other woman claimed he lived. He “enjoyed his comforts” and that property was rented and shared with two other occupants, she alleged.

Further, the wife said large amounts of his personal items and documents were stored at the marital home.

The applicant said she believed the marital relationship was hostile and limited, and she would not have tolerated a situation where the man was still intimate with his wife during the period.

She said she was named as his partner on his death notification, helped to organise his funeral and was given half of his ashes.

Both women gave details of attending social functions with the man during the overlapping years.

There was a disagreement between the parties about whether the man attended work in early morning hours, which the partner contended, or went to the marital home or drinking establishments, as the wife and her adult child claimed.

Mr Justice Barrett accepted, on the balance of probabilities, that the man must have gone to the marital home in those hours.

He did not see that the man and the applicant were “living together” in the manner required by the relevant Act. Further, he did not see that the husband and wife had been living apart during the period.

He refused the reliefs sought.