De facto relationships are becoming increasingly more commonplace, with marriage no longer being the stringent social norm it once was. With this shift in values comes new areas of uncertainty surrounding de facto relationships and the legal avenues available in the event they breakdown.
What constitutes a breakdown of a de facto relationship?
One complexity of de facto relationships is that it is sometimes difficult to pin point at what point it is deemed to have broken down or ended. When determining whether a breakdown has occurred, consideration must be made of the factors listed under s4AA(1) of the Family Law Act 1975 (Cth). The provisions of this section outline factors indicating the presence of a de facto relationship; however, these factors are also applied to determine where a relationship has broken down. The relevant facts are considered to determine if there is evidence of the relationship between the two parties no longer existing. The status of a de facto relationship is not always easily determined, as evidenced by the associated case law.
Fairbairn v Radecki (2022) HCA 18
This case sought to determine whether the de facto relationship between the appellant and respondent had broken down for the purpose of the court making property settlement orders pursuant to s90SM of the Family Law Act 1975 (Cth).
The implications of the High Court decision in this case span across numerous contentious issues. Foremost, the consideration by the court of whether “living together” as specified by s4AA(1)(c) must involve some level of cohabitation in the same residence.
The appellant made the argument that a breakdown of the relationship had occurred, as evidenced by the fact that they no longer resided with the respondent. The court in its judgement expressed a disagreement with this argument, stating at 32, “It would be productive of injustice if two people who live apart (including for reasons of health) were incapable of remaining in a de facto relationship.”
This treatment of the appellant’s argument is indicative of the way society is evolving to recognise the various forms that domestic relationships can take. While sharing a common residence is one factor that suggests the existence of such a relationship, the High Court found (at 33) in relation to s4AA(1) of the Act that “cohabitation of a residence or residences is not a necessary feature of “living together.”” This finding is important to the progression of the common law surrounding de facto relationships, as it gives consideration to real-world factors. It reflects the fact that not every relationship will take the same form, but that regardless of that form the parties should still be entitled to rights under the law.
The High Court did find that the relationship had broken down, however this finding was based on the behaviour of the respondent outside of the circumstances that cohabitation had ceased.
This ties in with another issue raised by this case, which is the manipulation employed by the respondent following the appellant’s loss of capacity due to dementia. In particular, the endeavours of the respondent to have the appellant’s will and enduring power of attorney altered in his favour.
This was especially significant to the circumstances of this case, as a defining tenant of the relationship between the two parties was that their financial affairs remained strictly separate. The respondent’s behaviour was in direct contradiction with this key principle and was therefore found to be evidence of a breakdown of the relationship. The fundamental elements of their specific partnership had been breached. This reasoning was at the core of the High Court’s ruling in this matter. The importance of this is that de facto relationships take many forms, and therefore what constitutes a breakdown will vary. It is vital that these variations are taken into account by the courts when determining de facto matters in order to achieve equitable outcomes across a range of circumstances.
The High Court also found the behaviour of the respondent indicated a favouring his financial interests over those of the appellant, his de facto wife. While the task of the court in this matter was not to determine whether coercion had occurred, the facts outlined certainly lend themselves to the conclusion that it had. It can be argued that in organising the adjustments to the appellants will and enduring power of attorney, the respondent had applied undue influence on her. This undue influence leaves the appellants estate open to be contested, most likely by her children, who were favoured over the respondent in the original will and enduring power of attorney documents.
Moving forward
Domestic partnerships take many forms, and it is important to understand what amounts to a de facto relationship in the eyes of the law. Moreover, it is perhaps even more crucial to comprehend what amounts to the breakdown of a de facto relationship, as it does not carry the same clear-cut sense of finality as a marriage ending with divorce.
If you are seeking clarification on your rights in a de facto relationship, we would be pleased to inform and advise you in this area. You can contact our office to arrange a consultation with a member of our experienced team.
