The High Court of Australia rules on De facto relationships – what does it mean for a de facto relationship to breakdown?

For both married and de facto couples, the Court is unable to make adjustive property orders relating to that relationship unless that couple has first separated. In most cases, it is obvious when a relationship (either married or de facto) ends, but what about when a couple’s physical separation is not enough to determine the end of that relationship when one party has lost mental capacity?

On 11 May 2022 the High Court of Australia handed down a decision in Fairbairn v Radecki [2022] HCA 18. Streeterlaw Accredited Specialist in Family Law, Simone Green says this is a significant recognition for the nature of modern relationships and the varying forms that a de facto relationship may take. It is important to note that living together is not the only requirement of a de facto relationship but one of many factors that go together to constitute a legal de facto relationship in Australian law. The case clarifies what living together means within its legislative definition for de facto relationships; and further clarifies what constitutes the breakdown of that relationship.

The High Court in Fairbairn v Radecki considered the question whether the Court had jurisdiction to make orders for the sale of a property belonging to the de facto wife, but inhabited by the de facto husband, in circumstances where she was living in aged care, suffering dementia and the de facto husband refused to move out. The case centres on the question of if or when the de facto relationship ended and, whether the Court had the power to make orders requiring the sale of the home.

In this case, the couple had resided in Ms Fairbairn’s home and kept their finances separate throughout their relationship and, importantly, had signed two separate Cohabitation Agreements to that effect during that relationship. Following Ms Fairbairn’s cognitive decline, she could no longer make decisions for herself, and it was asserted that Mr Radecki had begun after that date to intermingle his and Ms Fairbairn’s finances to the detriment of Ms Fairbairn, failing to provide adequately for her needs.

Mr Radecki had argued with Ms Fairbairn’s children regarding aspects of her welfare and had sought to overturn a power of attorney in favour of Ms Fairbairn’s children, appointing himself enduring attorney, during the time when Ms Fairbairn lacked capacity to make that appointment. The NSW Civil and Administrative Tribunal (“NCAT”) stepped in and appointed the NSW Trustee and Guardian (“the Trustee”) as Ms Fairbairn’s guardian and financial manager who then sought to sell Ms Fairbairn’s home to raise funds to meet her ongoing care needs via an Application to the Family Court of Australia.

Mr Radecki argued that the relationship with Ms Fairbairn had not broken down, relying on the fact that he regularly visited Ms Fairbairn in the aged care home, had used some of her money to convert a van for the use of a wheelchair and had made some (but not all) payments towards the cost of the aged care home.

The trial judge determined that the de facto relationship had broken down no later than 25 May 2018 on the basis that Mr Radecki’s conduct while Ms Fairburn was ‘labouring under an incapacity’ was inconsistent with the continuing relationship after that date but this was overturned on appeal to the Full Court who held that the de facto relationship had not broken down and Mr Radecki’s ‘bad behaviour’ was insufficient to make such an assertion.

The High Court upheld the decision of the trial judge and determined that there had been an effective separation. At paragraph [42] the High Court states “a de facto relationship may continue even though the parties physically reside at different locations, and despite one of those parties suffering from (severe) illness.”

What was relevant in determining the relationship had broken down was stated at paragraph [46] as “Whilst there had been a degree of mutual commitment to a shared life [47], that commitment ceased when the respondent refused to make the “necessary or desirable adjustments” in support of the appellant and, by his conduct, acted contrary to her needs.”

If you are in or entering a de facto relationship, we strongly advise that you seek advice from an Accredited Specialist in Family Law on how you may protect your assets in the event of a separation. Call us today on 02 8197 0105 to speak to our Family Law experts.