Brennan v Mansfield and Prince Alfred College Inc [2013] SASC 83

Recently, on 6 June 2013 Justice Stanley delivered his judgment, concerning a same sex domestic partner claiming the benefit of the Inheritance (Family Provision) Act 1972 (Inheritance Act). Mr Brennan lived with Mr Pfeiffer (deceased) as a couple for 26 years until the deceased’s death. They enjoyed a luxurious life together which was largely funded by the deceased. The deceased died leaving a substantial estate and in his Will left $100,000 to Mr Brennan together with his share in a house they owned as tenants in common. The residue of the estate, worth approximately $2.5m was left to Prince Alfred College (PAC). Mr Brennan claimed he was not left with adequate provision for his proper, maintenance, education and advancement in life and submitted that PAC had no competing moral claim upon the deceased’s estate.

In order to succeed in his claim, Mr Brennan first needed to obtain a declaration pursuant to section 11B(2) of the Family Relationships Act 1975 (SA) (Act) that he was the domestic partner of the deceased. On behalf of PAC, Piper Alderman did not oppose that order as it was apparent that Mr Brennan and the deceased had lived together in a close personal relationship for the purposes of the Act. However, PAC did submit that Mr Brennan was affluent with total assets between $1.56 and $2.11m.

In addition to those assets PAC submitted he had a substantial salary and a generous pension which left him free of financial anxiety in circumstances where he had no dependents. Moreover, PAC submitted that Mr Brennan had been placed in this position due to the generosity of the deceased over the course of the relationship and therefore he had no moral right or claim to any additional provision out of the deceased’s estate.

Justice Stanley made a finding that the provision of $100,000 in addition to the substantial residence would not allow Mr Brennan to enjoy anything approximating the lifestyle he and the deceased enjoyed together over their 26 year relationship. In particular, the costs of maintaining that property could not be met from the gift of $100,000. In finding that Mr Brennan should enjoy the security of that real estate as his own the Court accepted that he also required the means by which to meet its substantial costs of maintenance and made an award of a further $900,000, or a total legacy of $1m.

As the first decision of its type in South Australia, and one of the very few in Australia, the case cannot however be considered as anything peculiar. The reality in South Australia is, that provided that a person can establish that they live in a close personal relationship, that person is also entitled to claim the benefit of the Inheritance Act in circumstances where they claim they have been left without adequate provision for their maintenance, education or advancement in life. This has always been the test for heterosexual de facto partners as it now is for same sex couples. Some media commentary has suggested that cases of this type would be unnecessary if same sex marriage was lawful. That commentary ignores the tests that applies to de facto couples, be they same sex or not.

Given the financial facts particular to the case, Mr Brennan was required to substantiate his claim for further provision to the Court, PAC being unable to ascertain on the limited Court authorities available, what adequate provision might amount to for Mr Brennan.

For future applicants, this scenario may be influenced by the Same Sex Marriage Bill 2013 read for the first time in the South Australian Parliament on 20 June 2013.

Same Sex Marriage Bill 2013 (SA)

This Bill was introduced into the South Australian Parliament by Dr Cloves, the labour member for Port Adelaide on 25 July 2013. The Bill introduced the concept of a “same sex marriage” meaning the lawful union of two people of the same sex to the exclusion of all others, voluntarily entered into for life provided those persons have attained the age of 18 years. By section 7 of the Bill a same sex marriage may be solemnised by an authorised celebrant however section 8 does not bind a Minister of Religion to solemnise a same sex marriage. A Minister of Religion is defined broadly in the Bill as a person recognised by a religious body or religious organisation as having authority to solemnise marriages in accordance with its rights or customs.

Section 9 to 13 of the Bill prescribes the process by which a same sex marriage may be solemnised and is broadly similar to that which exists for marriages between a man and a woman. The Bill has been introduced as a concurrent power of the State of South Australia with the Commonwealth. In her second reading to Parliament, Dr Cloves said “……. the forensic examination of the operation of the Commonwealth law and this proposed law is not a matter for any of us in this place to decide conclusively. If challenged, it would ultimately be a question for the High Court of Australia”. If enacted, this Bill will remove the test of a “close personal relationship” for same sex partners if married prior to claiming the benefit of the Inheritance Act. However, it will not remove that obstacle for those same sex couples and heterosexual couples, who remain in “de facto” relationships or those persons who cohabit in close domestic relationships as defined pursuant to the Act.

The passage of this Bill will no doubt be monitored by the Federal Government.