De Facto Partner’s Post-Death Property Claim: Can a survivor start a Property Law Act 1974 (Qld) Part 19 application after an intestate death?
Based on the authentic Australian judicial case LC v The Public Trustee of Qld [2008] QSC 51, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.
Chapter 1: Case Overview and Core Disputes
Basic Information
Court of Hearing: Supreme Court of Queensland, Trial Division
Presiding Judge: Douglas J
Cause of Action: Application for a property adjustment order under Part 19 of the Property Law Act 1974 (Qld), brought against the personal representative of a deceased person’s estate
Judgment Date: 17 March 2008
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: De facto relationship
Keyword 3: Property adjustment order
Keyword 4: Intestacy
Keyword 5: Survival of actions
Keyword 6: Statutory construction
Background
This case sits at the uncomfortable junction where intimate relationships meet the hard edges of statutory procedure. The Applicant and a now-deceased de facto partner had planned a life together, bought real property together, and mixed their finances in ways that are familiar to many couples. But the relationship ended in the only way that leaves no room for negotiation: death.
The Applicant did not qualify as a spouse for family provision under the Succession Act 1981 (Qld) because she could not establish the required continuous period of living together on a genuine domestic basis for at least two years ending on the deceased’s death. She therefore attempted a different statutory pathway: a property adjustment order under Part 19 of the Property Law Act 1974 (Qld), focusing on her claimed substantial contributions.
The central question was not whether she contributed, or whether she suffered hardship, but whether the Court had power to entertain this kind of claim at all when the proceedings were started only after the death.
Core Disputes and Claims
Core dispute: Whether a surviving de facto partner can commence a Part 19 application for a property adjustment order under the Property Law Act 1974 (Qld) after the other de facto partner has died intestate, where the survivor asserts substantial contributions and serious injustice if no order is made.
Applicant’s position:
1. A property adjustment order should be available because she made substantial contributions recognised by the Property Law Act 1974 (Qld).
2. The statutory purpose of Part 19 was to provide predictable relief to de facto partners and avoid forcing them into complex equitable claims.
3. The Act did not expressly prohibit commencing the claim after death, and a purposive construction should permit it.
Respondent’s position:
1. The application was incompetent because Part 19 creates a personal statutory right which does not survive death unless proceedings were already commenced before death.
2. The statute contains a specific provision dealing with death during proceedings, implying there is no right to start proceedings after death.
Chapter 2: Origin of the Case
The factual storyline is simple, which is precisely why its legal consequence is so striking.
The Applicant and the deceased began their relationship in September 2003. Over time, the relationship took on a seriousness reflected in ordinary adult decisions: they planned to marry and became engaged in December 2006. Before the engagement, in October 2006, they purchased a property together in common. The Applicant paid money towards repayment of a loan connected to that purchase.
That detail matters because, in everyday life, paying a mortgage feels like earning a stake. People rarely think in terms of legal categories such as equitable interests, statutory thresholds, or whether a remedy is personal to the parties and dies with them. Most people think: “I paid; therefore I should not be left with nothing.”
But the relationship history carried a vulnerability. The Applicant’s own evidence was that, despite being in a relationship for years, they had not lived together as a couple on a genuine domestic basis continuously for at least two years before the death. The deceased died intestate on 20 June 2007.
That timing and that statutory threshold set the stage for the litigation. The Applicant sought a Court order to adjust property interests under the Property Law Act 1974 (Qld). The Respondent, acting as personal representative of the estate, did not primarily contest the emotional appeal of the Applicant’s position. Instead, the Respondent challenged the legal doorway itself: whether the Applicant could even start the application after death.
Detail Reconstruction
Relationship formation: A relationship commencing in 2003, becoming engaged in 2006, and culminating in the joint purchase of real property.
Financial interweaving: Joint ownership of property and the Applicant’s payments towards a related loan.
Triggering event: The intestate death of one partner, leaving the other to seek relief through statutory mechanisms.
Conflict Foreshadowing
In practice, disputes like this often begin with grief and end with paperwork. Once a death occurs, the estate must be administered, and statutory entitlements become sharply defined. If a survivor falls outside the Succession Act’s definition of spouse for family provision, the survivor may look for another pathway. The Applicant did exactly that by turning to Part 19 of the Property Law Act.
What turned this into a decisive legal conflict was not a fight about the existence of affection, or whether contributions were morally deserving. It was a contest about statutory architecture: whether Part 19 was built to operate after death, or only between living parties, with a narrow exception for death occurring mid-proceeding.
Chapter 3: Key Evidence and Core Disputes
Applicant’s Main Evidence and Arguments
Evidence of relationship timeline:
– The relationship began in September 2003.
– Engagement occurred in December 2006.
Evidence of property acquisition:
– A property was purchased in common in October 2006.
Evidence of financial contribution:
– The Applicant paid money towards repayment of a loan related to the property purchase.
Evidence affecting Succession Act status:
– The Applicant’s evidence acknowledged they had not lived together on a genuine domestic basis continuously for at least two years ending on the deceased’s death.
Argument structure:
– Because she made substantial contributions, she sought a property adjustment order under the Property Law Act 1974 (Qld), relying on the contribution provisions and the serious injustice gateway.
Respondent’s Main Evidence and Arguments
Core position:
– The application was incompetent because it was commenced after death.
– Part 19 creates a personal statutory right that does not survive unless proceedings were already on foot before death.
Strategic focus:
– The Respondent framed the dispute as a jurisdictional and construction question, not a fact-finding contest about contributions.
Core Dispute Points
- Statutory gateway dispute: Is the right to seek a Part 19 property adjustment order a cause of action that survives death, or a personal right that dies with the person?
- Construction dispute: Does the structure of Part 19, particularly the provision dealing with death during proceedings, indicate that proceedings must be commenced while both parties are alive?
- Policy and purpose dispute: Should a purposive interpretation expand Part 19 to cover survivors who do not satisfy the Succession Act’s spouse definition?
- Scheme consistency dispute: Would allowing commencement after death produce an anomalous mismatch with the tighter limitation period for family provision claims?
Chapter 4: Statements in Affidavits
This matter was fought on the language of statutes and the shape of legislative schemes, but affidavits still played a central role. In applications of this kind, affidavits do two things at once:
First, they construct the factual platform: what was the relationship, what property exists, what contributions were made, and what injustice is said to follow.
Second, they often reveal strategic risk. Here, the Applicant’s own account included a fact that limited her alternative statutory pathway under succession law: she could not establish continuous cohabitation on a genuine domestic basis for at least two years ending at the death. That factual concession explained why the Applicant pursued Part 19 and not solely family provision.
Comparing the Affidavit Narratives
Applicant’s narrative emphasis:
– The seriousness of the relationship, including plans to marry.
– The practical commitment shown by a joint property purchase.
– The tangible financial reality of loan repayments.
Respondent’s narrative emphasis:
– The timing of the proceeding relative to the death.
– The statutory boundary: a personal right requiring living parties, with limited statutory preservation if death occurs during existing proceedings.
The boundary between untruths and facts was not the main issue here. The key boundary was between facts that generate sympathy and facts that activate statutory power. The Court was required to decide whether the statute allowed the claim at all.
Strategic Intent Behind Procedural Directions
When a case is essentially a statutory construction contest, judicial directions tend to narrow the dispute to its cleanest point. The Court’s approach signals a classic litigation lesson: a party may have a compelling narrative and credible evidence of contribution, but those matters cannot be reached if the proceeding is incompetent. In such situations, affidavits are still necessary, but they operate in the shadow of a threshold question: power first, merits second.
Chapter 5: Court Orders
Before the final determination, matters of this kind typically involve procedural arrangements designed to isolate and resolve the preliminary question efficiently. In this case, the dispute centred on competence and construction.
Procedural arrangements and directions commonly required in an application of this type include:
1. Directions for filing and serving affidavit material, including evidence of relationship history, property acquisition, and contributions.
2. Directions for written submissions focusing on statutory provisions and authorities on survival of actions and statutory rights.
3. Identification of the preliminary question for determination, namely whether the proceeding could be commenced after death.
4. Listing for a hearing confined to the jurisdictional and construction issue, with merits deferred or rendered unnecessary depending on the outcome.
Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic
Process Reconstruction: Live Restoration
The hearing operated less like a dramatic contest of witnesses and more like a disciplined exchange of legal logic.
The Applicant pressed a purposive construction. The submission was that Part 19 was enacted to prevent injustice to de facto partners by providing a predictable statutory remedy, rather than forcing litigants into difficult and costly equitable claims. The Applicant argued that the Act did not expressly say a survivor could not commence after death, and that the statute’s stated purposes pointed toward including people in her position.
The Respondent did not primarily deny the moral force of the Applicant’s circumstances. Instead, the Respondent argued that the statutory right was personal and ceased with death, unless preserved by a specific provision applying only when proceedings were already underway.
Core Evidence Confrontation
The decisive “evidence confrontation” was not about whose version of events was credible. It was about the statute’s architecture and what it implied.
On one side: the Applicant’s narrative of engagement, joint property, and contributions.
On the other: the Respondent’s construction argument that these facts could not be adjudicated through Part 19 unless the statutory doorway was open.
Judicial Reasoning
The Court framed the issue as a carefully defined legal question: whether a Part 19 claim may be commenced after death. The Court considered whether the right was properly characterised as a cause of action surviving under succession legislation, or as a personal statutory right that abates on death.
The Court then treated the problem primarily as one of statutory construction, examining the text and structure of Part 19, including the provision dealing with the effect of death on an existing proceeding and the legislative materials indicating what the reform was intended to do.
“In my view, the proper interpretation of the applicant’s rights to seek a property adjustment order under the Property Law Act is that such an application needed to be on foot before the death of her partner to allow it to continue to be enforced.”
This statement was determinative because it drew a bright procedural line. Even if the Applicant had strong evidence of contribution and a persuasive injustice narrative, the Court determined that Part 19 did not confer power to commence the proceeding after death. The consequence was that the application could not proceed to the merits.
Chapter 7: Final Judgment of the Court
The Court dismissed the originating application.
Orders and procedural directions:
1. Originating application dismissed.
2. Costs were not finally determined in the reasons and the Court indicated it would hear the parties further as to costs.
The legal outcome meant the Court did not make a property adjustment order under Part 19. The decision turned on competence and statutory power, not on a final adjudication of the Applicant’s alleged contributions.
Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory
Special Analysis
This judgment is a textbook example of how Australian courts handle the boundary between sympathy and power. The Applicant’s situation illustrates a common lived reality: couples can be deeply intertwined emotionally and financially while still failing to satisfy a statutory threshold designed for administrative clarity.
The jurisprudential value of the case lies in its disciplined insistence that statutory remedies do not expand simply because a case presents a hardship. Where Parliament has built a scheme with specific entry points and timeframes, courts tend to treat those boundaries as structural, not optional.
It also reveals a practical warning: if a statutory right is personal and tied to a relationship between living parties, delay can be fatal. A claimant may need to consider alternative legal avenues early, including equitable claims, because the statutory path may not survive death.
Judgment Points
- The Court treated the right under Part 19 as a personal statutory right, not automatically a cause of action surviving death.
- The Court approached the matter primarily as a question of construction of Part 19 and the relevant Succession Act provisions.
- The Court gave weight to the specific provision dealing with death during existing proceedings, treating it as indicating the limit of the death-related power.
- The Court relied on legislative purpose materials, including the Queensland Law Reform Commission work that underpinned the reforms, to confirm the intended boundary.
- The Court acknowledged policy awkwardness: the Applicant fell outside the Succession Act spouse definition, but that anomaly did not authorise the Court to extend Part 19 beyond its structure.
Legal Basis
Key statutory provisions considered in the reasoning included:
– Property Law Act 1974 (Qld), Part 19, including the provisions governing who may apply, contribution-based grounds, and the provision dealing with death during proceedings.
– Succession Act 1981 (Qld), including the survival of actions provision and provisions bearing on who may claim against an estate.
– Acts Interpretation Act 1954 (Qld), including purposive interpretation and use of extrinsic materials.
The Court’s method reflected orthodox Australian statutory interpretation: text, context, purpose, and where appropriate, extrinsic materials.
Evidence Chain
Even though the application failed on a legal threshold, the Court’s reasoning still used the factual chain as context for why the Applicant chose Part 19:
- Relationship began in September 2003.
- Engagement occurred in December 2006.
- Property was purchased in common in October 2006.
- The Applicant contributed to loan repayments.
- Death occurred intestate on 20 June 2007.
- The Applicant’s evidence did not establish continuous genuine domestic cohabitation for at least two years ending on the death.
- Proceedings were commenced only after death.
- The Respondent raised incompetence as the threshold issue.
This chain explains the litigation choice and the structural problem: the Applicant sought a contribution-based property adjustment remedy after death, but the statute’s death provision was directed to continuation of existing proceedings, not commencement of new ones.
Judicial Original Quotation
“An obvious conclusion to be drawn from the form of the section is that the power in the court to make an order where a de facto partner dies exists only if that partner was already a party to a proceeding commenced while he or she was still alive.”
This passage mattered because it captured the core interpretive move. The Court did not merely say, “the Act is silent.” The Court said the Act speaks by structure: when Parliament provides an express death-in-proceeding mechanism, the natural inference is that the mechanism defines the extent of the death-related power.
Analysis of the Losing Party’s Failure
The Applicant’s failure was not a failure of credibility or a failure to demonstrate hardship. It was a failure to clear a jurisdictional threshold created by the statutory scheme.
The Applicant’s strategy depended on persuading the Court to read Part 19 as available to fill a gap created by the Succession Act’s spouse definition. The Court determined that this was not a proper interpretive approach because:
- Part 19 contained an express death-related provision focused on continuation, not commencement.
- Legislative materials supported the view that only already-commenced applications could continue after death.
- Characterising the right as a personal statutory right meant it ceased on death unless preserved by a statutory mechanism.
In practical terms, the Applicant lost because the argument asked the Court to treat statutory purpose as a licence to create a remedy where the scheme’s structure did not provide one.
Disassembly of Judgment Basis: 8 Victory Points Using the Five-Link Structure
Victory Point 1: The Court classified Part 19 relief as a personal statutory right, not automatically a surviving cause of action
Statutory provisions: Succession Act 1981 (Qld) survival of actions provision; Property Law Act 1974 (Qld) Part 19 structure
Evidence chain: The proceeding was commenced after death
Judicial holding: The Court determined that this form of remedy is personal in nature and does not necessarily survive death
Judicial quotation: See the Court’s express conclusion that the right ceased on death unless preserved by the death-in-proceeding provision
Losing party’s failure: The Applicant could not reframe the statutory remedy as a transmissible cause of action in the required sense
Practical meaning: Not every entitlement that affects property is automatically transmissible against an estate. Where a statute creates a discretionary adjustment mechanism dependent on relational status, courts are cautious about treating it as a “cause of action” that survives.
Victory Point 2: The express death-in-proceeding provision operated as a structural limit
Statutory provisions: Property Law Act 1974 (Qld) provision addressing the effect of death on a proceeding for a property adjustment order
Evidence chain: No proceeding was on foot when death occurred
Judicial holding: The Court determined the death provision presupposes an existing proceeding and does not authorise commencement after death
Judicial quotation:
“It seems to me to follow that [the death provision] applies to proceedings for property adjustment already on foot and allows them only to continue.”
Losing party’s failure: The Applicant argued for a broad purposive reading, but the Court treated the express provision as defining, not merely illustrating, the scope of death-related power
Practical meaning: When Parliament writes a specific mechanism for what happens if a party dies during a proceeding, that mechanism often signals the full extent of what is permitted.
Victory Point 3: Purposive interpretation could not override a clear statutory structure
Statutory provisions: Acts Interpretation Act 1954 (Qld) purposive approach; Property Law Act 1974 (Qld) stated purposes provisions
Evidence chain: The Applicant would otherwise need equitable remedies
Judicial holding: The Court considered purpose but held the structure did not support post-death commencement
Judicial quotation: The Court’s reasoning emphasised the absence of explicit permission and the presence of a continuation-only mechanism
Losing party’s failure: The Applicant treated purpose as decisive, but the Court treated purpose as constrained by text and scheme
Practical meaning: Purpose informs construction; it does not authorise a court to supply missing gateways where the scheme indicates Parliament chose not to create them.
Victory Point 4: Extrinsic materials confirmed the legislature intended continuation only
Statutory provisions: Acts Interpretation Act 1954 (Qld) use of extrinsic materials; Property Law Act 1974 (Qld) Part 19 reform context
Evidence chain: The Court considered the Queensland Law Reform Commission report
Judicial holding: The Court treated the report as reinforcing that only commenced applications could continue notwithstanding death
Judicial quotation: The Court relied on the report’s emphasis that continuation is available “provided an application has commenced”
Losing party’s failure: The Applicant’s “legislative limbo” submission could not overcome the demonstrated legislative intention
Practical meaning: If a reform report or second reading materials show that Parliament deliberately addressed death only in the context of continuation, courts are reluctant to extend beyond that.
Victory Point 5: Scheme coherence mattered, including comparative timing logic with family provision claims
Statutory provisions: Succession Act 1981 (Qld) family provision time limits; Property Law Act 1974 (Qld) application timing provisions
Evidence chain: The estate administration framework requires timely claims
Judicial holding: The Court accepted the force of the argument that it would be anomalous to allow a property adjustment commencement window that outlasts family provision timing
Judicial quotation: The reasoning treated scheme inconsistency as a relevant contextual consideration
Losing party’s failure: The Applicant’s gap argument highlighted hardship but also exposed the risk of distortion of the statutory scheme
Practical meaning: Courts often interpret related statutes to avoid creating lopsided procedural outcomes unless Parliament clearly intended that result.
Victory Point 6: The Applicant’s reliance on the end-of-relationship provision did not solve the death problem
Statutory provisions: Property Law Act 1974 (Qld) provision permitting application after a de facto relationship has ended
Evidence chain: The relationship continued until death
Judicial holding: The Court treated death as not necessarily fitting the “ended” concept in the required way for commencement, given the specific death-in-proceeding provision
Judicial quotation: The Court noted the provision may not assist where the relationship continues until death
Losing party’s failure: The Applicant could not use a general “ended relationship” concept to sidestep the statute’s specific treatment of death
Practical meaning: General enabling words can be limited by specific provisions dealing with special events such as death.
Victory Point 7: Declarations about relationship status did not create a right to commence adjustment proceedings
Statutory provisions: Property Law Act 1974 (Qld) declaration provisions about existence of a de facto relationship
Evidence chain: Declarations can be made whether or not either partner is alive
Judicial holding: The Court treated declaration jurisdiction as separate and not a backdoor to commence a property adjustment application after death
Judicial quotation: The Court stated the declaration power was not available to enable a property adjustment proceeding to commence after death
Losing party’s failure: The Applicant’s reliance on the declaration provision could not convert relationship status into post-death adjustment power
Practical meaning: A declaration provision can clarify status for various purposes, but it does not necessarily expand remedial jurisdiction.
Victory Point 8: The case quietly re-emphasised the continuing role of equity when statutory gateways fail
Statutory provisions: Property Law Act 1974 (Qld) Part 19 purpose provisions; equitable principles remain relevant where statutes do not apply
Evidence chain: The Applicant’s position suggested she may seek constructive trust style relief
Judicial holding: The Court recognised the Applicant’s alternative would be equitable intervention but did not treat that as justification to expand the statute
Judicial quotation: The Court referenced the kind of equitable remedy available in cases such as Baumgartner v Baumgartner
Losing party’s failure: The Applicant asked the Court to treat statutory reform as eliminating the need for equity in all scenarios, but the statute did not go that far
Practical meaning: Part 19 reduced reliance on equity for many de facto disputes, but it did not abolish equity’s relevance, especially where death and statutory thresholds intersect.
Key to Victory
The successful party’s strategy was disciplined and narrow:
- Identify the threshold defect: the proceeding commenced after death.
- Characterise the right correctly: a personal statutory remedy rather than a transmissible cause of action.
- Anchor the construction in the statute’s structure: the death-in-proceeding provision implies continuation only.
- Reinforce with authoritative context: legislative materials and comparative statutory coherence.
In short: the winning argument avoided debating contributions and focused on whether the Court had power to reach that debate at all.
Reference to Comparable Authorities
King v King [1974] Qd R 253
Ratio summary: Statutory remedies in the matrimonial and analogous context may be characterised as personal and may abate on death depending on statutory construction and the nature of the order sought.
Skene v Dale [1990] VR 605
Ratio summary: The survival of statutory rights is determined by the legislation creating the right, and some adjustment-style remedies may be personal and not transmissible absent clear legislative direction.
Read v Nicholls [2004] VSC 66
Ratio summary: Adjustment regimes akin to de facto property orders may be treated as personal statutory rights, supporting the conclusion that they do not survive to be commenced after death unless the statute provides otherwise.
D’Este v D’Este [1973] Fam 55
Ratio summary: Matrimonial causes style rights are essentially personal jurisdictions; death can cause proceedings to abate where the statute does not provide survival.
Barder v Caluori [1988] AC 20
Ratio summary: Whether further proceedings can be taken after death depends on the nature of the proceedings and the construction of the relevant statutory provisions.
Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290
Ratio summary: For statutory rights, survival and transmissibility depend on the statute itself; common law survival rules are not the decisive guide.
Baumgartner v Baumgartner (1987) 164 CLR 137
Ratio summary: Equity can recognise constructive trust style relief in domestic relationship property disputes based on contributions, unconscionability, and the prevention of unjust enrichment.
Implications
- If you rely on a statutory remedy, timing is part of the remedy. Delay is not merely inconvenient; it can extinguish the pathway.
- Relationship labels matter less than statutory definitions. Two people can feel like spouses in life, but the law asks specific questions and expects specific proof.
- If your claim depends on a court’s discretionary adjustment power, you must check whether that power exists against an estate before you commit to the proceeding.
- Where statutory gateways fail, equity often remains. The law may still recognise contribution-based interests, but the route is usually more complex and tends to carry higher cost risk.
- The most protective step is early legal mapping. Knowing which statute applies, which thresholds must be met, and which deadlines control can prevent grief from turning into avoidable legal loss.
Q&A Session
Q1: If I helped pay for a house, does that automatically mean I can claim against my partner’s estate?
No. Financial contributions can be powerful evidence, but the legal route depends on which remedy is available. Some statutory remedies require proceedings to be commenced while both partners are alive. If that gateway is closed, contribution evidence may still be relevant to equitable claims, but the legal test and risks are different.
Q2: Why did the Court not simply decide what was fair given the Applicant’s contributions?
Because courts must act within statutory power. If a proceeding is incompetent, the Court cannot reach fairness on the merits through that statutory pathway, even if the factual circumstances create hardship.
Q3: What should someone do if they cannot meet the two-year cohabitation threshold under succession legislation?
They should obtain advice quickly on alternative options. Depending on the facts, options can include equitable claims concerning beneficial interests in property, claims arising from joint ownership arrangements, or other remedies that may be available under property and trust principles. The best option depends on the evidence and how the property is held.
Appendix: Reference for Comparable Case Judgments and Practical Guidelines
1. Practical Positioning of This Case
Case Subtype
De Facto Relationships: Post-death property adjustment jurisdiction dispute under Property Law Act 1974 (Qld) Part 19, in the context of intestacy and non-qualification as a spouse for succession-based family provision.
Judgment Nature Definition
Final Judgment, determining the competence of the originating application and dismissing it.
2. Self-examination of Core Statutory Elements
Execution Instruction Applied
This case belongs to Category ① De Facto Relationships & Matrimonial Property & Parenting Matters. The following core test standards are provided for reference only. Outcomes tend to be determined by the specific facts, the available evidence, and the precise statutory gateway. These standards should be applied rigorously and cautiously, and not as absolute predictors.
① De Facto Relationships & Matrimonial Property & Parenting Matters (Family Law)
Core Test: Existence of De Facto Relationship, Section 4AA
Duration of the relationship: The Court examines the length of the relationship, noting the general threshold concept often discussed in practice, while recognising statutory exceptions can apply depending on the legal regime.
Nature and extent of common residence: The Court considers whether the parties lived together, the extent of cohabitation, and whether it was continuous or intermittent.
Whether a sexual relationship exists: The Court considers whether a sexual relationship existed, recognising that absence is not necessarily determinative in every case.
Degree of financial dependence or interdependence: The Court examines whether one partner financially supported the other, whether finances were pooled, and whether there was financial reliance or mutual support.
Ownership, use and acquisition of property: The Court considers whether property was acquired jointly or separately, how it was used, and whether ownership reflects a shared life.
Degree of mutual commitment to a shared life: The Court considers whether the relationship showed commitment beyond convenience, including future plans and shared responsibilities.
The care and support of children: The Court considers whether the parties had children together and how responsibility for children was assumed and shared.
Reputation and public aspects of the relationship: The Court considers how the relationship was presented to the community, family, friends, and institutions.
Any other relevant circumstance: The Court may consider other factors that illuminate whether the relationship existed on a genuine domestic basis, recognising that no single factor is necessarily decisive and the inquiry requires a composite picture.
Property Settlement: The Four-Step Process
Identification and Valuation: Determine the net asset pool by identifying all assets and liabilities and valuing them as at the relevant date.
Assessment of Contributions:
– Financial contributions: initial contributions, contributions during the relationship, and post-separation contributions.
– Non-financial contributions: labour, management, maintenance, and improvements to property.
– Contributions to the welfare of the family: homemaker and parenting contributions, and broader support that enabled asset accumulation.
Adjustment for Future Needs: Consider the Section 75(2) factors, including age, health, income earning capacity, responsibility for children, and the overall capacity to support oneself.
Just and Equitable: The final check requires the proposed division to be fair in all the circumstances, ensuring the Court’s orders produce an outcome that is just and equitable.
Parenting Matters: Section 60CC of the Family Law Act 1975 (Cth)
Primary Considerations:
– The benefit to the child of having a meaningful relationship with both parents.
– The need to protect the child from physical or psychological harm, with protection from harm given greater weight where the considerations conflict.
Additional Considerations:
– The views of the child, assessed in light of maturity and understanding.
– The capacity of each parent to provide for the child’s needs, including emotional and educational needs.
– The practical difficulty and expense of a child spending time with and communicating with a parent.
– Any other factors the Court considers relevant to the child’s best interests in the circumstances.
3. Equitable Remedies and Alternative Claims
Execution Instruction Applied
Where statutory relief is unavailable or tends to be determined as outside jurisdiction, parties may consider equity or other common law doctrines. These alternatives are fact-sensitive and can carry higher complexity and cost risk.
Promissory and Proprietary Estoppel
Did the other party make a clear and unequivocal promise or representation, such as a statement that the property would belong to the other partner or that contributions would be recognised?
Did you act in detrimental reliance on that promise, such as paying loan instalments, funding renovations, or making life decisions on the assumption of shared property outcomes?
Would it be unconscionable for the other party or the estate to resile from that promise, given the reliance and detriment?
Result reference: Even without a written contract, equity may prevent a party from going back on their word where it would be against conscience, and relief may include recognition of an interest in property or compensation designed to avoid injustice.
Unjust Enrichment and Constructive Trust
Has the other party or the estate received a benefit at your expense, such as the accumulation of equity in real property funded by your payments?
Is it against conscience for that benefit to be retained without recognition or repayment, given the relationship context and the nature of the contributions?
Result reference: The Court may order restitution or declare a beneficial interest via a constructive trust where the circumstances tend to be determined as making it unconscionable to deny the contributor a proper interest.
Procedural Fairness and Ancillary Claims
In estate-related disputes, procedural fairness typically concerns the proper administration of the estate and the lawful exercise of statutory powers. Where a statutory claim fails due to a closed gateway, a party may consider whether there are other lawful avenues to contest decisions, while recognising that courts tend to be strict about jurisdictional limits.
4. Access Thresholds and Exceptional Circumstances
Regular Thresholds
Two-year continuous cohabitation concepts: Some regimes require evidence of continuous living together on a genuine domestic basis for a defined period ending at a critical date, such as death, to access certain succession-style entitlements.
Commencement timing for statutory remedies: Where a statute contemplates death, it often provides a specific mechanism. If it provides for continuation of proceedings upon death, it may indicate that proceedings should be commenced while both parties are alive.
Time limits in succession contexts: Family provision style claims commonly have strict timeframes after death, and late claims tend to carry higher risk and require careful explanation and statutory compliance.
Exceptional Channels
Family Law: Less than 2 years of cohabitation may still allow relief where an exemption applies pursuant to Section 90SB, including where there is a child of the relationship, or where substantial contributions have been made and failure to make an order would result in serious injustice.
Property and equity: Even where statutory thresholds are not met, equitable doctrines may still be available, but success tends to depend on precise proof of contributions, reliance, and unconscionability.
Suggestion: Do not abandon a potential claim simply because you do not meet a standard time or condition. Compare your circumstances carefully against statutory exceptions and equitable pathways, because those exceptions can be decisive when the primary gateway is closed.
5. Guidelines for Judicial and Legal Citation
Citation Angle
It is recommended to cite this case in legal submissions or debate involving:
– Whether a statutory adjustment remedy is personal and abates on death.
– How to construe provisions dealing with death during proceedings.
– The interaction between de facto property adjustment regimes and succession law timeframes and definitions.
Citation Method
As positive support: Where your matter involves a statutory scheme with a death-in-proceeding mechanism, citing this authority can strengthen an argument that commencement after death is not permitted unless expressly provided.
As a distinguishing reference: If an opposing party cites this case, you should emphasise factual and statutory differences, including whether proceedings were commenced before death, whether the statute contains an express commencement-after-death power, or whether the claim is truly proprietary in nature and not a discretionary adjustment remedy.
Anonymisation rule: In submissions, use procedural titles such as Applicant and Respondent, and avoid unnecessary personal identifiers beyond what is required by the citation.
Conclusion
This judgment shows that legal remedies are not only about what happened, but also about when you act and which legal doorway you choose. In intimate financial life, it is easy to assume that contribution equals entitlement. In law, entitlement depends on statutory thresholds, procedural timing, and whether the remedy survives death.
Golden Sentence: Everyone needs to understand the law and see the world through the lens of law, because true self-protection stems from the early understanding and mastery of legal rules.
Disclaimer
This article is based on the study and analysis of the public judgment of the Supreme Court of Queensland (LC v The Public Trustee of Qld [2008] QSC 51), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.
The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.
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