What are the factors that might allow a court to conclude that a de-facto relationship has – for the purposes of family provision applications or intestacy claims – ended.

That issue was recently considered by the High Court of Australia in an appeal by the NSW Trustee and Guardian against a Family Court ruling that blocked the sale of a matrimonial home owned by one of the partners to fund her own healthcare.

Court rules on relationship end date – implications for intestacy claims & family provisionMs Fairbairn and Mr Radecki – both then in their 50’s – entered into a de facto relationship in early 2006.

Both had adult children from previous relationships, their own assets and property, and both intended to keep those assets strictly separate.

They entered into a financial agreement in 2010 that quarantined their property from one another with Ms Fairbairn’s home retained in her absolute sole beneficial ownership “untainted” by their de facto status.

A similar agreement was entered into in 2015 to declare that a property acquired by Radecki would remain in his sole ownership in the same way.

Around the same time, Ms Fairbairn’s health began to deteriorate through cognitive decline.  In early 2017, her medical specialist was leaning toward a diagnosis of dementia. He expressed concern over Mr Radecki’s “ill-conceived” 3-month absence overseas in April thru June.

In mid-2017, Ms Fairbairn was formally assessed as warranting a full-time placement in an aged care facility due to dementia.

Several applications were brought before the NSW Civil and Administrative Tribunal in 2018 and orders were made appointing the Trustee for Ms Fairbairn’s health and financial affairs and revoking an Enduring Power of Attorney Mr Radecki had recently secured from his partner in his favour.

The Trustee then sought to sell Ms Fairbairn’s home to fund an accommodation deposit to reduce her daily accommodation fees.

In the face of Radecki’s objection to that course, the Trustee applied to the Family Court – on the basis the relationship had broken down – for an order to sell it.

Radecki contested the court’s jurisdiction contending their relationship was ongoing and argued he should be allowed to remain in occupation. Ms Fairbairn’s care should be funded by other means, he asserted.

The High Court agreed there was power to deal with the home under the Family Law Act, notwithstanding the existence of a recent will that granted Radecki a life interest in the home and the 2010 and 2015 financial agreements.

That finding was however contingent on the appeal judges agreeing with the Trustee on the threshold issue of whether or not the pair’s de facto relationship had in fact broken down.

That break down occurred – so held the court – in May 2018 when Mr Radecki refused to make the necessary and desirable financial arrangements for his partner’s support and the Trustee’s assumption of that role.

That finding was unconnected to the couple being separated due to ill-health and the falling-out between Mr Radecki and his de facto’s children.

Radecki’s regular visits to the aged care facility were – in such circumstances – insufficient to regard the relationship as continuing as had been decided by the Full Court of the Family Court.

The ruling has direct implications to intestacy and family provision applications given that in Queensland, the Succession Act 1981 provides :

  • where a valid Will is in existence, the breakdown of a de facto relationship may revoke that Will in relation to provision for a former spouse (includes de facto);
  • where there is no valid Will in existence (an intestacy), the breakdown may prevent any distribution to the former spouse (includes de facto); and
  • Family Provision Applications are not open to former de factos, whether dependant or not.

This case demonstrates how important estate planning and regular reviews are to achieving good estate outcomes. It is essential to re-visit such plans as we age, endure declining health, and navigate changed circumstances and relationship hurdles.

Fairbairn v Radecki [2022] HCA 18 Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ, 11 May 2022