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The Courts view on the Breakdown of a De Facto Relationship

Jul 11, 2023 | Blog, De Facto

he breakdown of a de facto relationship is an important aspect of family law that needs careful consideration. A recent decision by the High Court of Australia in Fairbairn v Radecki ((2022) FLC 94 083; [2022] HCA 18. 11 May 2022) has shed light on this issue. While the Family Law Act 1975 does not offer a precise definition of “breakdown” in relation to de facto relationships, this case emphasizes its significance, particularly regarding property orders for such relationships.

In this case, the parties had entered a de facto relationship with an unconventional financial arrangement. Despite living together in one party’s property. They maintained separate finances and investments. Eventually one party was diagnosed with dementia and her capacity to make long term decisions was severely impaired. As a result, a trustee was appointed to make decisions on her behalf. Including moving her into an aged care facility. In 2019, the trustee believed that the de facto relationship had broken down and initiated legal proceedings in the Federal Circuit Court of Australia for property settlement orders under s90SM.

The main issue before the Court was whether the relationship had genuinely ceased. The appellant argued that it broke down when they no longer lived together. As stated in section 4AA(1)(c) of the Family Law Act. However, the High Court disagreed with this interpretation and stressed the importance of considering real world circumstances and avoiding potential injustices towards individuals living apart due to health reasons. This decision by the High Court provides valuable guidance on how courts should approach defining “breakdown” in de facto relationships and highlights the need for fairness when determining such matters. The High Court has allowed the appeal with respect, concluding that considering all relevant circumstances surrounding their situation there was a definitive breakdown in the de facto relationship between both parties by May 25th, 2018. Factors such as occupying separate rooms and one party residing in an aged care facility were taken into account during deliberation; however, it is essential to recognize that these factors alone did not determine this outcome entirely. The key element leading to this ending was identified as the respondents’ actions where he behaved as if he were no longer obliged by their agreement concerning keeping assets separate.

This precedent setting decision provides vital clarification on defining “breakdown” within de facto relationships; underscoring a critical need for thorough assessment of varied circumstances and interactions between involved parties when determining cessation of a de facto relationship. Should you require further assistance or information regarding de facto relationships and family law matters please do not hesitate to reach out. We have a team of experienced lawyers available to guide and support you throughout the complexities of family law matters ensuring protection of your rights and interests.