There are various factors that the Federal Circuit and Family Court of Australia will take into consideration when determining whether a de-facto relationship has broken down and before it can make orders for the adjustment of property interests. Even if you no longer live together, you may still be considered by the Courts to be in a de-facto relationship, based on a variety of factors that are considered. Here, we explore what those factors and circumstances are, and how this may impact you.

Are you in a de facto relationship?

A de facto relationship is a relationship where the participants are not legally married but are living together on a genuine domestic basis. In order to determine the existence of a de-facto relationship,  the Court considers a number of factors as listed in the Family Law Act (section 4AA(2). These include:

  1. the duration of the relationship;
  2. the nature and extent of their common residence;
  3. whether a sexual relationship exists;
  4. the degree of financial dependence or interdependence, and any arrangements for financial support, between them;
  5. the ownership, use and acquisition of their property;
  6. the degree of mutual commitment to a shared life;
  7. whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;
  8. the care and support of children;
  9. the reputation and public aspects of the relationship.

However, despite all the circumstances as listed above, no two relationships are the same and therefore the Court needs to consider the facts of each individual case when making decisions regarding relationship breakdowns and property settlements. This was made evident in the recent High Court decision of Fairbairn v Radecki [2022] HCA 18 (11 May 2022).

If you are no longer living with your spouse or partner, does that mean you are no longer in a de facto relationship with them?

For a court to have the power to make orders adjusting property interests in de facto relationships, it needs to determine that the relationship has broken down. In this particular case, Fairbairn (the “Appellant”) submitted to the Court that her de-facto relationship with Radecki (the “Respondent”) had broken down. The Appellant stated that this breakdown could be demonstrated by the fact that, (amongst other things), the parties no longer lived together on a permanent basis due to the Appellant’s declining health and following her being moved into an aged care facility.

The High Court found that this submission could not be supported, and concluded that:

Cohabitation of a residence or residences is not a necessary feature of “living together”. That phrase must be construed to take account of the many numerous ways in which two people may share their lives together in the modern world. Two people, for any number of reasons, may not reside in the same residence, but nonetheless be in a de facto relationship in the sense required by s 4AA.[1]

[1] Fairbairn v Radecki [2022] HCA 18 (11 May 2022) at [33].

So, what does the Court consider in determining whether a relationship has broken down?

In addition to stating the couple no longer lived together, the Appellant (Fairbairn) also made an alternative argument, being that the Court, in considering all the circumstances outlined in section 4AA(2) of the Family Law Act, could determine whether a relationship had broken down.

In handing down it’s judgement in this case, the Court determined that the term “living together” encompassed more than just having a physical connotation but also refers to having a shared life together and a mutual commitment to that shared life.

The High Court stated that in determining whether a de facto relationship continued to exist meant considering whether: “necessary or desirable adjustments” were being made by the couple to allow the continuing of their shared life. Thereafter explaining: “if one party fundamentally acts contrary to the interests of the other in relation to the property of the couple, it may be possible to conclude that the mutual commitment to a shared life has ceased”.[2]

So, what does a “commitment to a shared life together” encompass? In looking at Fairbairn v Radecki, the Court considered the following factors were relevant when determining whether there remained a mutual commitment to a shared life:

  1. the conduct of the each of the parties to the relationship, including whether both or either of them had made the necessary or desirable adjustments that demonstrate a continued relationship. For example: a failure to abide by a cohabitation agreement.
  2. The mental state of the parties.
  3. How the parties cohabited. For example: sleeping in separate bedrooms, and where they choose to reside.
  4. All of the circumstances as set out in section 4AA(2), including the public aspects of the relationship, for example the intervention of public/governing bodies.

However, every relationship is different, and it’s important to remember that the facts of each case (and characteristics of each relationship) will determine whether these circumstances are determinative of the status of the de facto relationship.

In Fairbairn, it was considered that the mental capacity of the Appellant and the fact that she had moved into an aged care facility were not factors that were determinative of a breakdown of the relationship, and where the Court concluded that, “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”.[3]

In fact, it was the conduct of the Respondent and the public aspects of the relationship that resulted in the Court finding the de facto relationship had broken down. Examples of the Respondent’s conduct included:

  1. That the Respondent failed to keep the finances of the parties separate, which had been a key feature of the cohabitation agreement.
  2. The Respondent secured a new Power of Attorney which gave him control over the Appellants finances, including her assets, despite the Appellant having been diagnosed with Dementia.
  3. The Respondent arranged for a solicitor to visit the Appellant while she was hospitalised and prepared a new will for the Appellant that was more favourable to him, again, despite the Appellant having been diagnosed with Dementia.
  4. The Respondent’s refusal to allow the Appellant’s home to be sold and to allow for the funding of the Appellants ongoing care, which was demonstrative of a need to protect his own financial interests as he wanted to continue to reside in the Appellant’s home.
  5. The Respondent’s failure to cooperate with Public Trustee, and the Appellant’s Children to further the interests of the Appellant.
  6. The failure by the Respondent to disclose his assets to a Commonwealth Department (namely Services Australia, Centrelink).

Given the intervention by a public and administrative body (namely NCAT) and the appointment of the Public Trustee, as a result of the Respondent’s conduct, it was considered that the public view of the relationship was that the Respondent was behaving in a manner that was threatening to the Appellants interests and therefore was not in keeping with a mutual commitment to a shared life.

[2] Ibid at [38].
[3] Ibid at [42].

So, what does this case tell us about a de facto relationship breakdown?

As can be seen from the above, in assessing whether a de facto relationship has ceased, the Court will scrutinise the conduct and behaviour of the party/s to determine whether one party is refusing to make the necessary or desirable adjustment to support the interests of the other party.

In this case, the Respondent was behaving in a manner that was threatening to the Appellant’s interests. It is not simply a case of whether you are no longer living together, but rather your conduct and contribution to a shared life together that will also be considered.

Do you need assistance with your de facto relationship?

If you are unsure as to whether your de facto relationship has indeed broken down or you have questions about the Court process, our friendly and experienced family lawyers are here to assist.

Give us a call on 02 9262 4003 for a confidential discussion or submit an online enquiry.

The content of this article is intended as a general guide to the subject matter. For specific legal advice about your individual circumstances, please contact our experienced lawyers.

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