Are you sliding from compacto to defacto?

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I have often written about being, and have many elderly clients who are, alone.

They are not necessarily lonely but more, lonesome. They may have lost their spouse or partner through death or divorce. They may have intentionally misplaced them through what I call, disinterest. Alternatively, they may live in a parallel universe through the ravages of dementia.

In later life, they may still want to be involved rather than to retreat. They may also not want the potential personal (and family) complications of another formal marriage or even a de-facto relationship. They may have also heeded their lawyer’s advice that the transition into another relationship can really leave you in a legal pickle when it comes to who pays for what or worse, who gets what when you die.

Is there an alternative which doesn’t create a legal commitment (and thereby a minefield) and at the same time, satisfies our needs for involvement, social stimulation or companionship. There is and we call them ‘compactos‘ – people in later life who just want an antidote to social isolation and some companions for the sharing of good times but not necessarily a home or a bed.

There is even a website which has identified this demographic called “Stitch”.

But for people whose partner may have contracted dementia and who, as a consequence, are separated, not necessarily by desire, but by circumstance – there is a particular poignancy. Some may be committed to their original marriage vow – ’till death do us part’. For others however, especially where the separation comes at a relatively early stage in their retirement, it may be more a case of ’till dementia do us part’.

I recently came across an example of this latter development. A husband and his wife were in their early 70’s and, after a long marriage, she had recently had to move into aged care in the relatively advanced stages of Alzheimer’s disease. She no longer recognised him or anyone else in her family. Her life expectancy was uncertain – it could be long or short.

He was a dutiful husband in every sense of the word until, that is, he met a woman who was also visiting her husband in the same facility and in similar circumstances to him. As they say, one thing led to another and before long they were ‘compactos’ socialising together and sharing each other’s company outside the aged care facility.

They irrevocably and irresistibly moved to a moral and, as it turned out, a legal crossroads. They were both adamant that neither of them wanted to divorce their respective spouses. They were, however, contemplating moving in together and sharing their lives outside the facility visiting hours. They were about to mutate from compactos to defactos.

Lawyers are not trained, or required, to make moral judgements about their client’s life choices. We are attuned to advise on legal implications and consequences of those choices.

Put succinctly:

  1. You can have more than one ‘spouse’ simultaneously (I believe the record in Australia was 4);
  2. For most legal purposes, ‘defacto’ spouses are the same as ‘married’ spouses;
  3. Having more than one creates a legal minefield, particularly on your death, as each are entitled to challenge your Will (not to mention as are the children from both sides of the family); and
  4. Even ‘compactos’ can slide inadvertently into the ‘defacto’ definition and thereby create the same minefield.

Of course there are legal devices and techniques to address these festering issues.

However, in the end, from my experience, the scourge of loneliness and the resulting search for later life happiness will usually outweigh what one client described as these ‘other annoying issues’.

Best advice in these circumstances is to make your life decisions with eyes wide open and bearing in mind the potential panic attack or moral outrage of your children.

Brian Herd

Recognised as one of the leading experts in Australia on elder law, aged care, retirement, estate planning and disability and a regular author, broadcaster and popular presenter on many elder law subjects and issues.