What Are De Facto Property Settlement Rights in Australia?

If you have been in a de facto relationship and you are now separating, you may be wondering whether you have the same property settlement rights as a married couple. In most of Australia the short answer is yes, de facto partners can apply for a property settlement under the same federal family law rules as married couples. There are some important conditions to meet, and the position is a little different in Western Australia. This guide explains how it works, in plain terms.

This is general information only, not legal or financial advice. Everyone's circumstances are different, so it is sensible to get advice that fits your situation.

What counts as a de facto relationship?

Under the Family Law Act 1975, you are in a de facto relationship if you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis, and you were not married to each other and not related by family.

There is no single test. A court looks at the whole picture, including:

• how long you were together and how much time you lived together
• whether you had a sexual relationship
• the degree of financial dependence or interdependence and any financial support arrangements
• how you owned, used and acquired property
• your degree of mutual commitment to a shared life
• the care and support of any children
• whether the relationship was registered under a state or territory law
• how the relationship was regarded publicly

No single factor is decisive. "Living together" does not always mean sharing one home full time. The focus is on a genuine shared life as a couple.

Can you apply for a property settlement?

This is where de facto couples differ from married couples. Before a court can divide property for a de facto couple, it must be satisfied that at least one of these four things is true:

• your relationship lasted at least two years in total, or
• there is a child of the relationship, or
• one partner made substantial contributions and it would be a serious injustice not to make an order, or
• the relationship was registered under a state or territory law.

If any one of these applies, you can ask the court to divide property in the same way a married couple would. This is an important correction to a common misunderstanding: the two year mark is not the only path. A shorter relationship can still qualify if, for example, you have a child together or your relationship was registered.

There is also a time limit to apply

Separately from the conditions above, there is a deadline. For de facto couples, an application to divide property must generally be made within two years of the relationship breaking down. After that, you need the court's permission to apply, which is not always granted, or both parties need to consent.

It helps to keep these two "two year" ideas separate. One is about whether your relationship qualifies at all. The other is a deadline for getting your application in once you have separated. If you are approaching the deadline, it is worth getting advice promptly.

How property is divided

Where a de facto couple qualifies, the court applies the same principles it uses for married couples, and it must be satisfied that any order is just and equitable. In broad terms, the court considers:

• the assets, liabilities and financial resources of both people, whether held jointly or individually
• financial contributions each person made, such as income, savings or paying down a mortgage
• non-financial contributions, including homemaking and caring for children
• future needs, taking into account things like age, health, earning capacity and the care of children

There is no fixed formula and no automatic fifty fifty split. The outcome depends on your particular circumstances.

Superannuation

Superannuation can be split as part of a de facto property settlement, just as it can for married couples. This matters because super is often one of the larger assets a couple holds, and it is easy to overlook.

Western Australia is worth a special mention. Following a law change that applies to cases filed in the Family Court of Western Australia from 28 September 2022, separating de facto couples in WA can now split superannuation too. Before that change, WA was the only place in Australia where de facto couples could not do this.

A note on Western Australia

Western Australia runs its own system for de facto couples. De facto property matters in WA are dealt with by the Family Court of Western Australia under the Family Court Act 1997 (WA), rather than the federal Family Law Act that applies elsewhere. The general ideas are similar, but if you separated in WA it is especially important to get local advice, because the court and some of the rules are different.

What about children?

Arrangements for children are treated separately from property and do not depend on how long your relationship lasted. You can seek parenting orders and apply for a child support assessment through Services Australia regardless of the length of your relationship. So even a short relationship that does not qualify for a property settlement can still involve child support and parenting matters.

Making it formal: consent orders and financial agreements

If you reach an agreement, there are two main ways to make it legally binding.

Consent orders are orders the court makes by agreement, usually without a hearing. The court will only make them if it is satisfied the orders are just and equitable. You are not required to have a lawyer to apply, although advice is sensible.

Binding financial agreements are a kind of private contract. For de facto couples they are made under Part VIIIAB of the Family Law Act. A key requirement is that each person must receive independent legal advice from an Australian legal practitioner before signing, and the agreement must meet specific formal requirements to be valid. A properly made agreement can set out how property is divided and keep the matter out of court.

These agreements can also be made before or during a relationship, not just at separation, which some couples use to set expectations early.

Where Separately fits in

If you are separating from a de facto partner, it can be hard to picture where you stand financially. Separately gives you a clear, structured assessment of your situation so you can approach the next steps with more confidence and less guesswork. An assessment is a helpful starting point. It is not a substitute for legal advice, and any formal settlement, whether consent orders or a binding financial agreement, should be set up with independent legal advice.

Understanding your rights early can take some of the uncertainty out of a difficult time.