Factors in determining when a de facto relationship has broken down

While the Family Law Act 1975 (Cth) (“the Act”) provides provision for the court to make Orders regarding the alteration of property interests following the breakdown of a de facto relationship, it does not provide an exhaustive definition of “breakdown”.   In circumstances where legislation is not clear, cases must be considered to interpret how legislation is to be applied to each individual matter.

In a recent case of Fairburn & Redecki, the High Court clarified circumstances that constitute a breakdown of a de facto relationship.  Briefly, the facts of the case were as follows:-

1. Ms Fairburn and Mr Radecki commenced a de facto relationship in late 2005/ early 2006.
2. Both parties were in their 50’s and had children from previous relationships.
3. It was a core element of the relationship that they agreed to keep their assets strictly separate.
4. The parties lived in a property owned by Ms Fairburn.
5. Ms Fairburn suffered rapid cognitive decline and was diagnosed with dementia and by 2017, she did not have the capacity to make long-term decisions.
6. By 2017, the parties also occupied separate bedrooms.
7. By mid-2017, Ms Fairburn needed to move to an aged care facility and in order to fund her placement, her property needed to be sold.
8. Ms Fairburn’s children, who were Ms Fairburn’s attorneys pursuant to an Enduring Power of Attorney attempted to make the necessary arrangements.
9. Mr Radecki arranged for Ms Fairburn to execute a New Enduring Power of Attorney and Will more favourable to Mr Radecki.
10. Mr Radecki refused to sell the property.  Ms Fairburn’s children and Mr Radecki were engaged in court proceedings and in 2018 the NSW Trustee was appointed on behalf of Ms Fairburn to make health and welfare decisions.
11. After the NSW Trustee was appointed, Ms Fairburn was moved to an aged care facility and the NSW Trustee then commenced court proceedings seeking orders in the family law court for the property to be sold arguing that the de facto relationship had broken down.

The outcome

The High Court determined that the de facto relationship had broken down.  It was not just because Ms Fairburn had to move into an aged care facility or because of her mental incapacity.  While each of these factors were relevant in determining the status of the de facto relationship, the High Court found that neither is determinative.  It was made clear that a de facto relationship may continue even though the parties physically reside at different locations or if one of the parties suffers from severe illness.