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The case

On 11 May 2022, the High Court of Australia handed down the decision of Fairbairn v Radecki [2022] HCA 18.

This judgment indicates what the highest court in the land considers are the most important factors in determining the meaning of “breakdown of a de facto relationship” in respect to the making of property settlement orders under the Family Law Act 1975 (Cth) for de facto parties.

The decision also defined how to determine when a de facto relationship is said to exist. The Court will take into account all of the specific circumstances of the parties’ relationship and whether or not a couple are living together on a genuine domestic basis.

In this case, the parties did not dispute that a de facto relationship did existed. The question was when that relationship ended. The court had to consider the effect of one of the parties suffering a decline in their cognitive health to the extent that they were moved into an aged care facility.

The case is also interesting because the couple chose to keep their assets separate throughout the relationship, except for living together in a home owned by one of them.

Definition of 'de facto'

Ultimately the Court rejected the Appellant’s primary argument that the parties’ de facto relationship had broken down when the Respondent entered an Aged Care Facility, on the basis that separation could not be proven based solely on the fact that the parties were living in separate accommodation. While living together in a de facto relationship usually means cohabitating in the same residence, there are circumstances where that may not be the case.

The Court further concluded that the involuntary ending of the relationship due to one party moving to an aged care home will also not always “justify conclusion that a relationship has ended”, as per the previous High Court decision of Stanford v Stanford [2012] HCA 52.


The High Court allowed the Appeal and found that the parties’ de facto relationship had broken down not because the Appellant had been “obliged to move permanently into an aged care facility” or “because of the Appellant’s mental incapacity.” It was instead allowed on the basis that, regarding all of the circumstances, the de facto relationship had broken down at around the time when the Respondent, by his conduct, refused to “make the necessary or desirable adjustments” to continue to support the Appellant and their needs.

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