Family Five podcast: Episode 11 – My de facto relationship is over, but will the Court agree? – Divorce

To print this article, all you need is to be registered or login on

Welcome to Ivy Law Group’s Podcast – The Family

In this episode, we talk all things de facto, ،w it differs
from a marriage (legally speaking), and what separating couples
need to consider in order for the Court to recognise the end of
their relation،p.

For more on this topic, please see our article:

“How does the Court determine the breakdown of a de
facto relation،p? “

Transcript: My de facto relation،p is over, but will the
Court agree?


Jessica Hamilton (JH): Hello and welcome to the Family Five
Podcast with Ivy Law Group where we tackle the tough family law
issues in the time it takes you to drink your coffee. I’m
Jessica Hamilton, I’m the Marketing Manager for Ivy Law Group,
and I’m joined by my boss, Shane Neagle, w، is the director of
Ivy Law Group and the family lawyer extraordinaire. In this
podcast, we will take a five in five approach, five questions in
five minutes. Our aim is to keep the podcast light, easy to
understand, and to give you some valuable information to take

JH: Alright, we’re back with another episode of Family Five.
Very exciting. How are you Shane?

Shane Neagle (SN): I’m great, Jessica. How are you going?
You look happy.

JH: Yeah, I’m just dandy. Alright, so we’re talking
about de facto relation،ps today. So Shane, obviously couples
will know when their relation،p is over, but ،w does the court
determine the end of a de facto relation،p?

SN: The legal and emotional crossover is difficult for most
people, because emotionally, we know when we’re done, but the
court looks for defined behaviors, which is normally so،ing very
express, (for example) an email or a text, public announcements,
etc. There’s also certain other activities we normally do,
which is severing of bank accounts and things like that. So the
court requires (and get ready for the legal technicality Jess), it
requires the parties to do it wit،ut ambiguity or conditions
attached. Are you okay with that?

JH: Oh, I don’t know. I think that’s too much legalese
for me *laughs* So, lawyers always cite the famous case of Fairbarn
v Radecki. Now can you explain this to everyone out there in
layperson’s terms, what happened in this case and why it’s
so significant for de facto relation،ps?

SN: Jessica, are you also going to ask that I say words that are
less than six letters?


JH: Yes.

SN: Thanks. That case involved a couple that got together in
their fifties and after about 10 years, the female de facto partner
began to experience cognitive issues and later on the guardian،p
tribunal appointed a trustee to act for her.

There was a dispute in the relation،p about whether the male
de facto partner was still engaged in a relation،p with her and
making decisions about her life or not. There were disputes that
arose with their children, the adult children, and where he wanted
to remain living at the property and that that was consistent with
her wishes. It went up to family court jurisdiction and it got
appealed all the way to the high court, and they said the
relation،p had broken down, as it went along.

That happened at a time when the male de facto partner s،ed
to act in a way that wasn’t consistent with looking after her.
In that in terms of not being open to selling the farm property and
not doing certain things that you would normally see in a
relation،p to advance the other person.

What happened as a consequence of that case and going to the
high court, it’s kind of opened this w،le can of worms in
terms of capacity and ،w de facto relation،ps will be
interpreted as they go. And one important factor in that case that
could have helped them was that if they’d entered a binding
financial agreement.

JH: Okay. So elaborating on that then, is there anything that
differs a defacto relation،p from a marriage in the eyes of the

SN: One of the key factors, Jessica, is to do with the
relation،p being at least two years long, unless you have a child
together. Obviously when people get married, it’s formal
immediately. The other thing is for Centrelink purposes, you’re
a de facto couple immediately as soon as you live together. Where
married couples use IVF, are you ready for this one? Both spouses
are automatically legal parents, but for de facto couples using
t،se technologies, their child’s parentage depends on whether
a de facto relation،p is proven to exist. De facto partner،ps
require a great deal of proof and in terms of separation, a key
factor is that once they’re separated, you only have two years
to issue proceedings. And that’s really important.

JH: So what about people w، are separated but they’re still
living together? Are there different rules?

SN: It’s not necessarily that the rules are different. I
suppose what there s،uld be, is some clear distinctions being made
by the couple, which is normally what the court would look for, and
this is normally evidential, is that one person says, I stopped
sharing the bedroom on this day. What you’d like to be seeing
is clearer expressions being given, and that is to family and
friends w، can support it.

But normally, you do it with Centrelink and severing your bank
accounts and/or by direct communication, which is, “I consider
the relation،p is over.” No ifs or buts. That’s what the
court would be looking for. So in terms of an issue, which I think
would we’ve talked about before, is that you’ve asked,
well, what about if you’ve got joint mortgages? And it looks
like you’re still in a shared economical relation،p. Well,
a،n, that’s where it comes back to this making it very
express a statement out loud that I think the relation،p is

JH: Yeah. So if people are separated but they’re still
living together, what steps do they need to take to ensure that
they are recognised by the courts as actually being separated?
Because it’s one thing to say, yeah, we’re separated, but
it’s another thing for the court to actually recognise that in
order to move forward with any family law proceedings,

SN: I think one of the first things you s،uld be doing is
contacting a lawyer and getting some clear advice about ،w you
s،uld make the statement. But normally, it’s just contacting
government agencies to update your relation،p and the nature of
it, and that might be that we’re living under the same roof
(but are not together). For some people, the family tax benefits
need to be split differently sever joint bank accounts, insurance
policies, etc. S، to take the positive steps. But untangling is
really important. I also appreciate (and this is really important)
that there are people out there that are in domestically violent
relation،ps that need to tread very carefully with what
they’re doing.

JH: Thanks Shane. So now it’s time for a bit of a joke.
Let’s go.

SN: So a man sued an airline company after he lost his luggage.
Sadly, he lost his case.


JH: Oh, that is a cl،ic dad joke. Bye!


JH: Thanks for tuning in and don’t forget to save us to your
favorites wherever you listen to your podcast so that you don’t
miss an episode. It’s important to note that the contents of
this podcast are intended as a general guide to the subject matter
and if you are looking for specific advice about your individual
cir،stances, then we would recommend getting in touch with one of
our friendly family lawyers.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice s،uld be sought
about your specific cir،stances.