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De Facto Relationships

In today’s world many couples choose not to marry, some do not like the idea of marriage, while others would simply prefer to avoid the stress and expense of a wedding. The Family Law Act 1975 recognises this social shift by ensuring that separating de facto couples come under the auspices of the law in much the same way as married couples.

At Empower Family Law & Mediation we can help you if your de facto relationship ends.

If parties are unable to agree by negotiation or attending a mediation, the Federal Circuit and Family Court of Australia can make decisions about the division of the property held between de facto spouses and decide the parenting arrangements for children of de facto relationships.

To make an order for property and maintenance issues on behalf of a de facto couple, the Court must be satisfied that at least one of the following applies:

In deciding whether a de facto relationship existed, the Court will consider:

Legally, you could be considered to be in a de facto relationship even though one or both of you are still married to another person, or one or both of you are in another de facto relationship. Neither shared residences nor monogamy is definitive proof of the existence or non-existence of a de facto relationship.

If a party meets the definition of a de facto couple and cannot agree about arrangements for their property or maintenance, the Federal Circuit and Family Court of Australia will deal with the matter in a very similar way to the way it would a married couple. Please refer to our page about Property for more information.

It is vital that if an agreement about property division cannot be reached, a party to a de facto relationship files an application with the Federal Circuit and Family Court of Australia within 2 years of the date of separation. After that time, the party making the application will need the Court’s permission, which is not always guaranteed.

How we can help

At Empower Family Law & Mediation we have the experience to assist you to fully understand and pursue your entitlements following the breakdown of a de facto relationship. We will offer a comprehensive assessment of your situation and your options, and we will be upfront about our costs.

Please contact us on (03) 7020 6542 to discuss your situation.

FAQ’s

What makes a relationship “de facto”?

It’s a relationship between two people who live together as a couple on a genuine domestic basis and aren’t married to each other.

Do we need to have been together for two years?

No, 2 years is only one way to qualify, but you can also qualify if you have a child together, if your relationship was registered, or if one of you made substantial contributions.

How long do I have to apply for a property settlement?

Generally, 2 years from the date of separation. After that, you need the Court’s permission, which isn’t guaranteed.

Is property divided the same way as for married couples?

The Court takes a very similar approach. It looks at what each of you contributed, what each of you will need in future, and what is fair in all the circumstances.

Can superannuation be divided?

Yes. Superannuation can be split between de facto partners as part of a property settlement.

Do we have to go to Court?

Not necessarily. Many couples reach agreement through negotiation or mediation and can formalise it by way of Consent Orders or a Financial Agreement.

What if we disagree about when we separated?

The date of separation affects your time limit, so it’s worth keeping a record of when and how the relationship ended and speaking to a lawyer as soon as possible.

Speak with us

Your first 30-minute consultation is free. Call (03) 7020 6542 or contact our team to discuss your circumstances and next steps.

Phone: (03) 7020 6542

Email: info@empowerfamilylaw.com.au

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The definition the Court actually applies

A de facto relationship is defined in section 4AA of the Family Law Act 1975. The core requirement is that 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. The factors listed above are the Court's way of testing that, rather than a checklist where every box must be ticked.

Two exclusions sit outside those factors. Your relationship is not a de facto relationship for these purposes if you were legally married to one another, or if you are related by family.

The jurisdictional requirement most people have never heard of

Before the Court can determine a de facto financial dispute, you must satisfy it of two things: that you were in a genuine de facto relationship which has broken down, and that you have a geographical connection to a participating jurisdiction.

The participating jurisdictions are every Australian state and territory except Western Australia. De facto financial matters connected to Western Australia are dealt with differently, so if your relationship was based there, or you have since moved, this is one of the first things to check. It is worth getting advice on whether your circumstances satisfy the criteria before filing anything.

How a de facto property case is decided

The general principles are the same for de facto couples as for married couples. They simply sit in different parts of the Act: sections 90SM(4) and 90SM(5) do for de facto relationships what sections 79(4) and 79(5) do for marriages.

That means the Court works through the same considerations: what you each own and owe and what it is worth; direct financial contributions such as the property each of you brought in and your earnings during the relationship; indirect financial contributions such as gifts and inheritances from family; non-financial contributions such as renovations, managing investments or running a business; contributions to the welfare of the family, including caring for children and running a household; the economic effect of any family violence; and each party's future needs, taking in age, health, financial resources, care of children including housing, and the ability to earn an income.

There is no formula and no fixed percentage. The Court decides what is just and equitable on the facts of your case.

Maintenance, superannuation and smaller pools

Three further points apply to de facto couples in the same way they apply to married couples:

The Court can only make financial orders if both parties were alive when the application was filed.

Pets

Companion animals are dealt with as property, under a framework that has applied since 10 June 2025. For de facto couples it sits in sections 90SM(6) and 90SM(7) of the Family Law Act 1975, mirroring sections 79(6) and 79(7) for married couples.

A companion animal is an animal kept by you or your former partner, or by both of you, primarily for the purpose of companionship. Assistance animals under the Disability Discrimination Act 1992, animals kept as part of a business, animals kept for agricultural purposes and animals kept for laboratory use are all excluded.

The Court can only order that one party have ownership, that the animal be transferred to another person who has consented, or that the animal be sold. It cannot order shared ownership or shared care. In choosing, it weighs how the animal was acquired, who owns or possesses it, who cared and paid for it, any family violence between the parties, any history of actual or threatened cruelty towards the animal, any attachment held by a party or a child, and each party's demonstrated ability to care for it in future without the other's involvement. See property settlement for the full list.

The Court information on this page reflects the published guidance of the Federal Circuit and Family Court of Australia on financial and property matters, as at 26 October 2026. It is general information only, not legal advice, and does not replace advice about your own circumstances.

What makes a relationship de facto under family law?

Section 4AA of the Family Law Act requires that 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. There is no single decisive factor. The Court weighs how long the relationship lasted, whether you lived together and for how long, whether there was a sexual relationship, whether you were financially dependent on each other and any arrangements for financial support, how property was owned, used and acquired, whether there was a mutual commitment to a shared life, whether there were children and how they were cared for, whether the relationship was registered under a state or territory law, and how other people regarded your relationship.

Can I be in a de facto relationship while married to someone else?

Yes. You may be found to be in a de facto relationship even though one or both of you remain legally married to another person, or are in another de facto relationship at the same time. Neither living at the same address nor monogamy is decisive proof that a de facto relationship did or did not exist; they are factors among others. Two exclusions do apply as a matter of law: your relationship is not a de facto relationship for these purposes if you were legally married to one another, or if you are related by family. Because the question is fact-sensitive and the answer determines whether the Court can deal with your property dispute at all, it is worth getting advice early.

What must I prove before the Court will decide a de facto property case?

Two threshold matters. First, that you were in a genuine de facto relationship with your former partner and that it has broken down. Second, that you have a geographical connection to a participating jurisdiction, which is every Australian state and territory except Western Australia; de facto financial matters connected to Western Australia are dealt with differently, so if your relationship was based there or you have since moved, check this early. You must also meet at least one of four criteria: the relationship lasted at least two years, there is a child of the relationship, it was registered under a prescribed state or territory law, or one party made significant contributions and serious injustice would result if no order were made.

Is property divided the same way as for married couples?

Yes, in substance. The general principles are the same and simply sit in different parts of the Act: sections 90SM(4) and 90SM(5) do for de facto relationships what sections 79(4) and 79(5) do for marriages. The Court works through the same exercise: identifying and valuing assets, liabilities and financial resources; assessing direct financial contributions, indirect financial contributions such as gifts and inheritances, non-financial contributions such as renovations or running a business, and contributions to the welfare of the family including homemaking and parenting; considering the economic effect of any family violence; weighing each party's future needs; and asking whether the overall result is just and equitable. There is no formula and no fixed percentage.

How long do I have to apply after separating?

Two years from the breakdown of the de facto relationship, which differs from a married couple who have 12 months from the date the divorce becomes final. If you are outside the two-year period you need the Court's permission to bring the application, and permission is not guaranteed. Because the date of separation can itself be contested in a de facto matter, where there is no marriage certificate or divorce order to anchor it, it is worth recording when the relationship ended and how that was communicated, keeping any messages or correspondence that evidence it, and taking advice well before the deadline approaches rather than in the weeks before it expires.

Can a former de facto partner claim maintenance?

Yes. A former de facto partner can be ordered to provide financial support in the same way a former spouse can, where one party cannot adequately support themselves and the other has the capacity to pay, subject to the same jurisdictional requirements that apply to a de facto property case. Superannuation interests can also be split, and must be dealt with at the point you formalise your financial arrangements rather than afterwards. Smaller matters may qualify as Priority Property Pool Cases, a streamlined court pathway available where you seek financial orders only and the net property, excluding superannuation, is likely to be under $550,000. The Court can only make financial orders if both parties were alive when the application was filed.

What happens to our pet if we separate?

Companion animals are property, and for de facto couples the framework sits in sections 90SM(6) and 90SM(7) of the Family Law Act, which have applied since 10 June 2025. A companion animal is an animal kept by you or your former partner, or both of you, primarily for the purpose of companionship — assistance animals, animals kept as part of a business or for agricultural purposes, and animals kept for laboratory use are excluded. The Court can only order that one party have ownership, that the animal be transferred to another person who has consented to the transfer, or that the animal be sold. It cannot order shared ownership or shared care, so there is no animal equivalent of a parenting arrangement. In choosing, the Court weighs how the animal was acquired, who owns or possesses it, who cared for and paid to maintain it, any family violence between the parties, any history of actual or threatened cruelty or abuse towards the animal, any attachment held by a party or a child, and each party's demonstrated ability to care for it in future without the other's involvement. Most separating couples sort this out themselves without going to court, which is also the only way to arrive at a shared arrangement.

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