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  • In the recent decision of Fairbairn v Radecki, the High Court provided greater clarity as to what constitutes ‘breakdown’ of a de facto relationship for the purposes of section 90SM and section 4AA of the Family Law Act 1975 (Cth).
  • Incapacity and physical separation in a relationship are not determinative factors.
  • Conduct during the relationship should be closely considered in the context of a ‘breakdown’.

It is a well-known fact that Australia is an ageing population. According to the Australian Institute of Health and Welfare, Australia’s older population (those aged 65 and over) continues to grow and is projected to more than double to 22 per cent or 8.7 million by 2056. According to the Australian Bureau of Statistics the marriage rate has been declining over time, reducing by 23.7 per cent between 2000-2019, however there has been a rise in de facto relationships.

The recent High Court decision of Fairbairn v Radecki [2022] HCA 18 demonstrates the intersection of these two issues. In its unanimous decision, the High Court of Australia has provided greater clarity to the meaning of ‘breakdown of a de facto relationship’.

On 11 May 2022, the High Court unanimously allowed an appeal from the Full Court of the Family Court of Australia. The appeal concerned the meaning of ‘breakdown of a de facto relationship’ for the purpose of making property settlement orders pursuant to section 90SM of the Family Law Act 1975 (Cth) (‘the Act’).

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