Involuntary Separation? Issues arising from Ageing, Illness & Second Relationships

We work mostly with people whose relationship is coming to an end, or has already ended. However in family law, there is a distinction between voluntary separation and involuntary separation. Below we will explain what involuntary separation is, and how issues relating to ageing, illness particularly in second relationships, can create significant risk and lead to Court.

What is Involuntary Separation?

There are circumstances where a couple, either married or in a de facto relationship, live apart despite their desire to live together. This may be due to one person needing to work and live away from their home for extended periods of time. It may also be due to caregiving responsibilities for a family member in another location. The most common situation is when one person in a relationship requires long-term care and loses capacity due to health reasons and that cannot be managed in the home environment.?

This typically means that their separation isn’t voluntary but is forced due to the circumstances. This is what would be classified as an involuntary separation.

When Doubts about Involuntary Separation Lead to Court

The question of whether a couple’s relationship status is truly one of involuntary separation, typically comes up in Family Law when concerns have been raised by third parties.

There may be circumstances where one person in the relationship does not have the capacity to decide or express the true state of their relationship, due to reduced decision-making capacity. As a result, there may need to be a determination of whether the relationship is ongoing or if in fact, it has already come to an end.

There may be concerns about the behaviours and decisions of the other person in the relationship. Common fears include possible financial abuse and/or whether decisions being made by the partner or spouse are in the best interests of the person in care.?

Where a relationship has ended, and one person does not have the decision making capacity to express that is the case, opens that person up to be taken advantage of. Sometimes there are questions about the status of a relationship because there are fears that the other person is taking advantage of the benefits associated with maintaining the facade that the relationship is intact.

These concerns may be raised by doctors and financial advisors. More commonly they are raised by family members. Particularly where the person in care has had two families, or second marriages or de facto relationships. We see that the children of first and second relationships are often first to question the status of whether the couple are involuntarily separated.

Second Relationships and Involuntary Separation

In 2022, there was a case challenging the status of a relationship that went all the way to the Full Court of the Family Court of Australia. Here is a condensed timeline of what occurred:

2015

• Ms Fairbairn and Mr Radecki enter into a de facto relationship keeping finances separate & both sign a cohabitation agreement.?
• Ms Fairbairn experiences rapid cognitive decline and reduced decision making capacity.?
• Ms Fairbairn’s children and Mr Radecki are in disagreement about how she should be cared for.
• Mr Radecki opposes the care arrangements that he perceives as unnecessary and refers to the care as putting her ‘in an institution’.?

2017

• Ms Fairbairn’s health is in decline and considered by doctors to be ‘precarious’.
• Ms Fairbairn is diagnosed with dementia.?
• Mr Radecki takes a planned three-month overseas holiday.
• Mr Radecki does not contact Ms Fairbairn or her family during the trip to check on her wellbeing.?
• Mr Radecki returns to Australia to learn that Ms Fairbairn’s children have been nominated as her Enduring Powers of Attorney.?
• Mr Radecki writes a letter that is signed by Ms Fairbairn that states Ms Fairbairn’s children should revoke their Enduring Powers of Attorney and support Mr Radecki’s approach to her care.
• Ms Fairbairn’s children do not comply.
• Mr Radecki drives Ms Fairbairn to a Courthouse to revoke their appointment as Enduring Attorneys, making changes in his favour.
• Upon learning of these changes, Ms Fairbairn’s children apply to NCAT (NSW Civil and Administrative Tribunal) which results in the NSW Trustee and Guardian being appointed to make decisions about Ms Fairbairn’s care.

2018

• Ms Fairbairn is moved into an aged care facility and the Trustee seeks property orders in the Family Court to sell Ms Fairbairn’s home to fund her ongoing care, arguing that Ms Fairbairn and Mr Radecki’s relationship had ended.
• The Court agrees and orders the sale of Ms Fairbairn’s home.
• Mr Radecki refuses to move out of the home stating in his appeal that he remains in a de facto relationship with Ms Fairbairn.
• Mr Radecki provides evidence that he continues to visit Ms Fairbairn in the aged care facility, has historically paid for some of her care and takes her to their home each week for visits.
• Mr Radecki is successful in his opposition.

2022

• The Trustee appeals the result, taking it to the Full Court of The Family Court. The issue before the Court is to determine if the relationship is ongoing (involuntary separation), or not.
• The appeal is allowed due to Mr Radecki behaving in ways that indicated he did not make ‘necessary or desirable adjustments’ to evidence an ongoing relationship.
• The High Court’s judgement outlines that despite the Family Law Act’s definition of a de facto relationship as a couple living together on a “genuine domestic basis”, that is not always possible given the need for care (aged care or otherwise). They went on to state that it was not the mental capacity of Ms Fairbairn that determined this judgement, nor was it that the de facto couple had to live separately, and that it would be an injustice “if two people who live apart (including for reasons of health) were incapable of remaining in a de facto relationship.”
• The Full Court determined that the relationship ended on the 25th of May, 2018.
• The appeal enabled the sale of Ms Fairbairn’s home to fund her ongoing care.?

Where there are concerns as to the status of the relationship where one person is in care, it is the joint assets that may need to be looked at to fund that care, if there are not other resources available. Even if there are additional resources to fund the care, the question where one person in the relationship has reduced decision making capacity is:?

Is this genuinely an involuntary separation or has the relationship ended?

Because, if the relationship has in fact ended, it triggers a separation and subsequently a property and financial settlement. In the case of Fairbairn and Radecki, if it had been ascertained earlier that their relationship had come to an end by the May of 2018, a property settlement (division of property) could have occurred immediately from that date and her care could have been funded from that date, rather than in 2022 .

Given that Ms Fairbairn and Mr Radecki had taken significant steps to keep their finances separate when they started their relationship, including having signed a cohabitation agreement, the ability to sell her home to fund ongoing care could have been final in 2018, had the status of the relationship been clear earlier.?

While this is not always possible to determine, it is important to plan for both a partner or spouse’s ongoing ability to remain in the family home if that is your wish. Even if there are other ways to fund illness or age related care, it is wise to plan for what will happen in the event of one person having reduced decision making capacity.?

Importantly, while this case was a de facto relationship, circumstances like these also occur in marriages, and between family and friends. Any person’s assets and their estate can be vulnerable due to reduced or declining cognitive capacity, ill health or age-related needs.

To avoid the risk of disputes like these, it is important to involve your family and/or attorneys (pursuant to any power of attorney) and ensure they are alive to the issues, particularly where there are second relationships. So, if you or your partner or spouse do lose capacity, everyone already knows who is going to step in and that your family has a clear understanding about your intentions and wishes.?

In addition to ensuring your estate planning includes these provisions, so too is it necessary to consider a Binding Financial Agreement when embarking on second relationships to ensure that there is a plan for how your property will be shared, if it all, upon your separation.

Related: Over 50’s and New Relationships: Are Prenups or Financial Agreements Effective?

Phillips Family Law is an award-winning Family Law practice serving clients across Australia and abroad. Regardless of where you are in your decision-making process, we can make you aware of your options. To discuss your situation confidentially, phone (07) 3007 9898 or secure a time by filling in our confidential form here.

Disclaimer: The content in this page provides general information however it does not substitute legal advice or opinion. Information is best used in conjunction with legal advice from an experienced member of our team.