CASE: Radecki & Fairbairn [2020] FamCAFC 307; Fairbairn & Radecki [2020] FCCA 1556

Fairbairn and Radecki started a relationship when both were in their 50s, had already acquired their own assets, and had their own children. A core element of their relationship was their agreement to always keep their finances separate.

However, when Fairbairn lost capacity and moved into a nursing home, Radecki refused to move out of her house. The house was Fairbairn's only assets and only if it was sold would she be able to pay the aged care accommodation bond.

Radecki, on the other hand, owned three properties in his own right. Yet despite that, he continued to live rent free in Fairbairn's house while what little savings she had were eaten away by aged care fees.

The NSW Trustee & Guardian, acting as Fairbairn's financial manager, started family law proceedings claiming that the relationship with Fairbairn and Radecki had ended.

But had it???

CASE: Wertheim v Perpetual Trustee Company Limited [2021] NSWSC 1229Relationship come in all forms. The nuclear family dynamic is declining in prevalence.

One form that is becoming increasingly common is the blended family, where you have spouses who have no children together, but have children from a previous relationship.

Later-life de facto relationships come with different concerns. For example, both parties will usually be older and will have accrued their own savings, superannuation, assets and property by the time their current relationship started. They may agree that they will continue to be financial independent, that throughout their relationship they won't intermingle their funds, they will each pay their own way, and, on their death, their estate will go to their respective children or their biological family.

This is a sensible and reasonable decision to make. But after death, can the surviving de facto go against that agreement to make a claim on the estate?

CASE: Rex Phillip Tory v Sarjit Kaur Tory [2007] NSWSC 1078

In 1986, Sarjit Tory owned real estate with her former brother-in-law Rex Tory. The land had great potential for rezoning and development.

Sarjit and Rex agreed that Rex would make the arrangements and applications for rezoning and they would share the costs equally between themselves.

However, twenty years later and the property had still not been approved for rezoning.

Rex was in financial difficulty. He wanted to give up on the development plan and just sell the property.

Sarjit, as co-owner, did not want to sell the property.

Rex applied to the Supreme Court to force the sale of the property.