Radecki & Fairbairn [2020] FamCAFC 307
The Issue
The main issue in this case was that the Court had to decide whether the de facto relationship had broken down.
The Law
For a relationship breakdown to have occurred, there needed to be an intention to separate and actions by a party that clearly identified such intention: Clarence & Crisp [2016] FamCAFC 157.
The Facts
The couple commenced their de facto relationship in 2005.
At the time they were in their 50’s. During the relationship both continued to keep separate financial lives but were living in the de facto wife’s (‘wife’) property.
In 2017, the wife had suffered from health conditions and was diagnosed with Dementia and Parkinson’s. She then required additional care and help to manage her illnesses so was placed into an aged care facility.
The question of where funds would be sourced from to pay the fees became the subject of dispute between her children from a previous relationship and the de facto husband (‘husband’).
Due to her illness, the NSW Trustee & Guardian were appointed to act as her financial manager and sought to sell the wife’s home where the couple resided by commencing family law proceedings. The intention of this was that the proceeds of the sale would pay for her care.
However, the husband appealed this on the grounds that:
– he and the wife were still in a de facto relationship; and
– he wished to continue to reside at the property.
The husband made a counter-proposal that he would pay for the wife’s care (as had done so previously) but sought to be reimbursed upon her passing from her estate. His second proposal was that the wife’s superannuation be used in the first instance and he would then start contributing.
The Outcome
The Court found that there was not a breakdown of the relationship on the evidence.
The major factors were that the husband had:
– previously used his own funds to be pay for the wife’s care; and
– he continued to visit the wife regularly.
In her last will executed in 2016, the wife had also provided that the husband could live in the property for 6 months upon her death.
Takeaway
De facto relationship law can be extremely tricky.
It is important if you are intending to start a relationship or move in with someone that you obtain some legal advice, especially where there are blended families involved. Advice should be obtained from both a family lawyer and estate planning lawyer and should cover what options or steps you may have to avoid a dispute of this nature happening to you.
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By Tegan Martens
Director & Principal Family Lawyer
Martens Legal
Disclaimer:
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based on your particular circumstances.
