The High Court’s decision will forever change the nature of their relationship, even if they live apart.
A couple can still be in a de facto relationship even if they don’t live together, according to a precedent-setting court ruling.
The landmark ruling, from the High Court of Australia, also means that judges can consider a couple to have involuntarily separated if one person is selfish enough not to “make the necessary allowances” for their partner.
The significant case, called Fairbairn v Radeckianalyzed what exactly constituted the breaking of a de facto relationship.
It also has implications for married couples who might have a separate mistress after the High Court ruled that a couple need not live together to be considered de facto by law.
Chris White, Director of Law at Powe & White Family Lawyers, represented Ms. Fairbairn in the case.
“The case raises the need for de facto couples to consider how they might plan for old age and part of that requires consideration of financial arrangements or prenuptial agreements,” he told Daily Mail Australia.
The High Court found that Mr. Radecki had failed to make “reasonable and necessary concessions” for his partner after he was diagnosed with insanity.
He also took his partner to court to switch her power of attorney, from their children to him, when his cognitive decline began.
Radecki made a number of moves to “advantage him and not Ms. Fairbairn, and he didn’t make the necessary concessions that she needed,” White added.
The court’s seven judges were asked to consider whether the couple, going by the pseudonyms Ms Fairbairn and Mr Radecki, had split and, if so, when exactly it happened.
The behavior of the people in the relationship is what ultimately determines its breakup
According to the facts of the case, a pillar of the couple’s relationship was keeping their assets “strictly separate” when they began dating in 2005.
However, Mr. Radecki lived in the house, which was owned solely by Mrs. Fairbairn.
By 2017, Ms. Fairbairn was suffering from severe dementia and her “ability to make long-term decisions was largely, if not completely, absent”.
In January 2018, the New South Wales Civil and Administrative Tribunal (NCAT) became involved and began administering Ms Fairbairn’s financial interests and, a few months later, agreed that she would be best committed to a nursing home.
In order to obtain the hefty Refundable Elderly Care Deposit (RAD) to secure a place for Ms. Fairbairn, her appointed trustee proposed to sell the house.
Mrs. Fairbairn’s family needed to sell their house to secure a place in the nursing home.
Mrs. Fairbairn’s children advocated for her finances to be managed by a trustee after she was diagnosed with insanity.
That’s when the legal battle between the couple began, with Mr. Radecki arguing that they were still in a relationship and that he still had a claim on the house.
De facto relationships are increasing at such a rate in Australia that they recently surpassed the number of marriages, according to the Australian Bureau of Statistics.
Every de facto relationship is difficult to define, and a court will look at five factors to determine if and when it began, specifically whether there was a shared residence, a public appearance, level of financial independence, and whether there was a sexual relationship.
Speech to ABC’s The Law ReportWhite said the court ultimately decided in his client’s favor.
When a couple in a common-law relationship separates ‘due to involuntary circumstances’ and the person still living in the family home ‘fails to make reasonable or necessary adjustments in the circumstances to support the departed spouse’, that would be enough to be considered ‘the breakdown of the de facto relationship,’ he said.
The decision means that couples do not need to intentionally separate, and can still live together for a court to determine that the relationship is de facto over.
The case went all the way to the High Court of Australia.
“The conduct of the parties is what is ultimately evaluated in answering the question of whether a relationship has broken down,” White said.
The court found that Mr. Radecki had been working to benefit his own financial needs over the needs of Ms. Fairbairn.
“His refusal to allow the NCAT NSW Trustee to sell his home so he could fund the refundable Eldercare Deposit was instrumental in saying that Mr Radecki was no longer making necessary or reasonable accommodations for Ms Fairbairn. ”, said Mr. White.
The High Court’s decision will also affect married couples because it finds that “any conduct that is unreasonable or unsupportive of the other person in that marriage should attract the jurisdiction of the court to intervene,” White added.
The most important takeaway, White said, was whether you’re acting in your partner’s best interest.
The decision also affects couples who do not live together, as the court rejected a separate argument by Ms Fairbairn, that the couple no longer had a common-law relationship because they did not live together.
“The High Court has said that not living together is not proof that the de facto relationship does not exist and, in fact, you have to look at people’s broader conduct,” White said.
Balance Family Law director Perpetua Kish told Lawyers Weekly the case boiled down to decency.
“Actions were considered incompatible with being a human being and a decent partner (in this case), and Radecki was found not to have been acting in Fairbairn’s interest, but rather to have put his own interests first, to the detriment of Fairbairn,” it said.