De Facto Relationship Property Settlement in Australia

In Australia, an increasing number of couples choose to share their lives in a de facto relationship rather than through formal marriage. However, when such relationships break down, questions around property settlement often arise: Do we need to divide property like a married couple? Are there time limits? What counts as joint property?

This article provides a comprehensive explanation of when and how property settlement occurs after the end of a de facto relationship in Australia and outlines the relevant legislative framework to help you protect your legal entitlements during this transitional time.

What Is a De Facto Relationship?

Under section 4AA of the Family Law Act 1975 (Cth), a de facto relationship exists when two people, who are not legally married, live together on a genuine domestic basis as a couple. This applies regardless of gender and whether the relationship is registered.

When determining whether a de facto relationship exists, the Court considers various factors, including:

The duration of the relationship (generally at least 2 years);
The extent of financial interdependence or intermingling of finances;
Whether there are children of the relationship;
Ownership, use and acquisition of property (e.g. joint assets or bank accounts);
Whether the relationship was publicly acknowledged (e.g. through social circles or social media).

️It is important to note that not every cohabiting relationship will qualify as a de facto relationship under the law. Legal recognition depends on the presence of multiple relevant indicators.

Notable Case

In Jonah v White [2011] FamCA 221, the applicant claimed a de facto relationship with the respondent and sought property orders. The relationship was a secret intimate relationship with the respondent being a married family man for 17 years, during which the applicant and the respondent “spent time together at various times in various places, had a sexual relationship, and expressed love and affection for each other”. The respondent denied the claim, arguing that although they had a long-standing personal relationship, they did not live together or share a domestic life. The Court found that the parties did not share a common residence, did not pool resources, and did not present themselves as a couple to others.

The Court ultimately ruled that a de facto relationship had not existed, and the property claim was dismissed. It is interesting to see that the existence of a de facto relationship is not determined solely by the length of the relationship, but by whether the parties were truly living in a shared domestic arrangement with mutual dependence. Without such characteristics, property entitlements may not arise.

Am I Entitled to a Property Settlement After a De Facto Relationship Ends?

Yes. If your relationship meets the legal criteria of a de facto relationship, and it has broken down, you have the same rights to property settlement under the Family Law Act 1975 as parties to a marriage.

You may seek a property settlement if any one of the following applies:

The relationship lasted at least two years;
There is a child of the relationship;
One party made substantial financial or non-financial contributions, and a failure to make orders would result in serious injustice;
The relationship is registered under state or territory law (e.g. in NSW, under the Relationships Register Act 2010).

What Is Considered ‘Joint Property’?

Under Australian family law framework, all property acquired during the relationship—regardless of whose name it is in—may be considered for division. This includes:

Cash savings, real estate, vehicles;
Overseas assets;
Superannuation;
Investments;
Debts (e.g. loans, credit card liabilities).

Even if an asset is legally registered in one party’s name, the other party may have a claim if it was acquired during the relationship or through joint effort.

When Must I Apply for Property Settlement?

There is a two-year time limit from the date of separation to apply for property settlement following the end of a de facto relationship.

If this time limit has expired, you must apply to the Court for leave to proceed and demonstrate a reasonable explanation for the delay.

It is always recommended to seek legal advice and address property settlement promptly to avoid evidentiary issues or the risk of asset disposal by the other party.

How Can Property Be Divided After Separation?

There are three main avenues to resolve property matters following the end of a de facto relationship:

Binding Financial Agreement (BFA)

If both parties are amicable, a BFA can be negotiated and executed with the assistance of independent legal advice. This agreement is legally binding and outlines the division of assets and liabilities.

Consent Orders

If parties have reached an agreement but wish for the Court to formalise and enforce it, they may apply for Consent Orders through the Federal Circuit and Family Court of Australia (FCFCOA). This must be done within two years of separation.

Court-Imposed Property Orders

If an agreement cannot be reached, either party may apply to the Court for orders. The Court will assess the contributions of each party, the current and future needs, and the best interests of any children in determining a fair and equitable distribution.

Why Choose Brightstone Legal for Family Law Matters?

At Brightstone Legal, our experienced family law team regularly assists clients with the legal and practical complexities of de facto relationship breakdowns and property settlements. Whether you’ve recently separated or are in a dispute over entitlements, we offer: