Podcast Episode 11: My de facto relationship is over, but will the Court agree?

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Jessica Hamilton (JH): Hello and welcome to the Family Five Podcast with Ivy Law Group where we tackle the tough family law issues in the time it takes you to drink your coffee. I’m Jessica Hamilton, I’m the Marketing Manager for Ivy Law Group, and I’m joined by my boss, Shane Neagle, who is the director of Ivy Law Group and the family lawyer extraordinaire. In this podcast, we will take a five in five approach, five questions in five minutes. Our aim is to keep the podcast light, easy to understand, and to give you some valuable information to take away.

JH: Alright, we’re back with another episode of Family Five. Very exciting. How are you Shane?

Shane Neagle (SN): I’m great, Jessica. How are you going? You look happy.

JH: Yeah, I’m just dandy. Alright, so we’re talking about de facto relationships today. So Shane, obviously couples will know when their relationship is over, but how does the court determine the end of a de facto relationship?

SN: The legal and emotional crossover is difficult for most people, because emotionally, we know when we’re done, but the court looks for defined behaviors, which is normally something very express, (for example) an email or a text, public announcements, etc. There’s also certain other activities we normally do, which is severing of bank accounts and things like that. So the court requires (and get ready for the legal technicality Jess), it requires the parties to do it without ambiguity or conditions attached. Are you okay with that?

JH: Oh, I don’t know. I think that’s too much legalese for me *laughs* So, lawyers always cite the famous case of Fairbarn v Radecki. Now can you explain this to everyone out there in layperson’s terms, what happened in this case and why it’s so significant for de facto relationships?

SN: Jessica, are you also going to ask that I say words that are less than six letters?

*laughs*

JH: Yes.

SN: Thanks. That case involved a couple that got together in their fifties and after about 10 years, the female de facto partner began to experience cognitive issues and later on the guardianship tribunal appointed a trustee to act for her.

There was a dispute in the relationship about whether the male de facto partner was still engaged in a relationship with her and making decisions about her life or not. There were disputes that arose with their children, the adult children, and where he wanted to remain living at the property and that that was consistent with her wishes. It went up to family court jurisdiction and it got appealed all the way to the high court, and they said the relationship had broken down, as it went along.

That happened at a time when the male de facto partner started to act in a way that wasn’t consistent with looking after her. In that in terms of not being open to selling the farm property and not doing certain things that you would normally see in a relationship to advance the other person.

What happened as a consequence of that case and going to the high court, it’s kind of opened this whole can of worms in terms of capacity and how de facto relationships will be interpreted as they go. And one important factor in that case that could have helped them was that if they’d entered a binding financial agreement.

JH: Okay. So elaborating on that then, is there anything that differs a defacto relationship from a marriage in the eyes of the court?

SN: One of the key factors, Jessica, is to do with the relationship being at least two years long, unless you have a child together. Obviously when people get married, it’s formal immediately. The other thing is for Centrelink purposes, you’re a de facto couple immediately as soon as you live together. Where married couples use IVF, are you ready for this one? Both spouses are automatically legal parents, but for de facto couples using those technologies, their child’s parentage depends on whether a de facto relationship is proven to exist. De facto partnerships require a great deal of proof and in terms of separation, a key factor is that once they’re separated, you only have two years to issue proceedings. And that’s really important.

JH: So what about people who are separated but they’re still living together? Are there different rules?

SN: It’s not necessarily that the rules are different. I suppose what there should be, is some clear distinctions being made by the couple, which is normally what the court would look for, and this is normally evidential, is that one person says, I stopped sharing the bedroom on this day. What you’d like to be seeing is clearer expressions being given, and that is to family and friends who can support it.

But normally, you do it with Centrelink and severing your bank accounts and/or by direct communication, which is, “I consider the relationship is over.” No ifs or buts. That’s what the court would be looking for. So in terms of an issue, which I think would we’ve talked about before, is that you’ve asked, well, what about if you’ve got joint mortgages? And it looks like you’re still in a shared economical relationship. Well, again, that’s where it comes back to this making it very express a statement out loud that I think the relationship is over.

JH: Yeah. So if people are separated but they’re still living together, what steps do they need to take to ensure that they are recognised by the courts as actually being separated? Because it’s one thing to say, yeah, we’re separated, but it’s another thing for the court to actually recognise that in order to move forward with any family law proceedings,

SN: I think one of the first things you should be doing is contacting a lawyer and getting some clear advice about how you should make the statement. But normally, it’s just contacting government agencies to update your relationship and the nature of it, and that might be that we’re living under the same roof (but are not together). For some people, the family tax benefits need to be split differently sever joint bank accounts, insurance policies, etc. Start to take the positive steps. But untangling is really important. I also appreciate (and this is really important) that there are people out there that are in domestically violent relationships that need to tread very carefully with what they’re doing.

JH: Thanks Shane. So now it’s time for a bit of a joke. Let’s go.

SN: So a man sued an airline company after he lost his luggage. Sadly, he lost his case.

*laughter*

JH: Oh, that is a classic dad joke. Bye!

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JH: Thanks for tuning in and don’t forget to save us to your favorites wherever you listen to your podcast so that you don’t miss an episode. It’s important to note that the contents of this podcast are intended as a general guide to the subject matter and if you are looking for specific advice about your individual circumstances, then we would recommend getting in touch with one of our friendly family lawyers.