It is becoming increasingly common for people to see us because they are unsure whether they are in a de facto relationship and the financial consequences of being in a de facto relationship. It appears that things aren’t as straightforward as they used to be, and there are a variety of reasons for that, as we discuss below.
The ability to connect and commute has expanded what relationships look like. Modern Australia’s traditional relationship concepts are evolving and with that, the big picture for many couples also looks different. We often have people ask us questions like:
- We are not married. Can I relocate with the children?
- If we never shared a bank account, do I still need a property settlement?
- If they worked away, is the house more mine than theirs?
- If we kept separate residences but spent much time at each other’s homes, does that mean we were not in a de facto relationship?
- We were in a relationship, and I later found out they had another partner. Does this mean we weren’t in a de facto relationship?
- We never lived together, but we have a child together. Can I commence financial proceedings?
- We have been in a relationship for ten years but have only lived together for a short time. Am I entitled to a property settlement?
- We were only together for a short time but paid $100,000 toward the home we lived in. Can I apply to the Family Court?
All the answers to these questions are impacted by whether or not you are classified as being in a de facto relationship. Importantly you don’t need to be living together in some circumstances! Below is a recent example that illustrates that living apart doesn’t mean a de facto relationship doesn’t exist.
What is a de facto relationship?
Recently the decision of Fairbairn v Radecki  HCA 18 (‘Fairbairn’), the High Court found that:
living together on a genuine domestic basis should be construed as meaning sharing a life as a couple and that section 4AA did not prescribe a way in which a couple may do this and was sufficiently broad to accommodate the many ways a life was shared in the modern world.
Therefore, it is possible to be living separately but share a life and be in a de facto relationship.
In Fairbairn, after a relationship of about 12 years, the de facto wife was diagnosed with dementia. The NSW Trustee was appointed as Guardian (‘The Guardian’). The Guardian sought to permanently move her into an aged care facility.
The Guardian, to fund the wife’s care and expenses, wished to sell the de facto wife’s home. However, the problem was that the de facto husband opposed the home sale. The Guardian commenced property adjustment proceedings in the Family Court on behalf of the wife to resolve the dispute.
The Guardian’s position was that as the couple no longer lived together on a genuine domestic basis as required by section 4AA(1)(c) of the FLA, the de facto relationship had irrevocably broken down on the date when the de facto wife moved to the aged care facility.
The High Court held that the Guardian’s position was:
…contrary to the text, statutory context and the purpose of section 4AA and contrary to real word considerations, stating that it would be an ‘injustice if two people who live apart (including for reasons of health) were incapable of remaining in a de facto relationship…
Therefore, while the de facto wife needed to move permanently into an aged care facility due to her mental and physical incapacities and needs, which may have contributed to the breakdown of the relationship, it was not determinative.
The relationship was accepted to have broken down when:
…the de facto husband began to act as if he was no longer bound by the parties’ cohabitation agreements and no longer made ‘necessary and desirable adjustments’ but acted contrary to the wife’s needs…
What does the Fairburn decision mean for de facto couples?
Notably, the High Court of Australia’s decision in Fairbairn indicates that parties living apart may constitute a de facto relationship if there remains a commitment to a shared life together. Separation involuntarily or mental incapacity alone will not be a determinant of the breakdown of a de facto relationship!
Types of conduct that contribute to the indication that the parties are no longer committed to sharing a life include:
- acting contrary to the other party’s interests;
- no longer making ‘necessary and desirable adjustments’ for the other party;
- acting in conflict with cohabitation agreements; and
- behaviours that show an intention to stop the joint commitment to a shared life may evidence the breakdown of a de facto relationship.