De Facto Relationships in Australia

I recall seeing a post in the facebook group Canberra Mums that mentioned a person who had split up from her de facto partner. The comments on the post ranged from “she can’t make a claim because they didn’t marry” to “if she was with him 3 months, she is entitled to half”.

These posts made me realise that there are a lot of misconceptions out there about what happens to the property of de facto couples when they separate. I’m sure there must be a lot of couples out there who really aren’t sure where they stand legally.

Here are a few quick family law myths about de facto relationships to clarify:

  1. ‘We’re not married, so I’m not entitled to anything.’ Not necessarily. If you meet the criteria under the Family Law Act, you may have a claim.
  2. ‘If she was with him for 6 months, she is entitled to half.’ Not true. There is no automatic 50/50 split in Australia for de facto (or even married) couples. There also is no 3 or 6-month ‘rule’.
  3. ‘Everything is in my name, so they can’t touch it.’ Not true. Just because the assets are in one person’s name, does not mean the other party cannot make a claim.
  4. Same-sex couples have no rights.’ Not true. Same-sex couples are treated the same as other de facto couples and come under the same tests.

The first question you need to ask is, what is a de facto relationship and was I in one? Essentially, if you think you might be in a de facto relationship, then you need to go get some legal advice from an expert family lawyer.

One of the considerations is the length of the relationship. There is a general 2-year rule, but there are also a lot of exceptions to the rule, (i.e. if you have children), so you should not make assumptions based on time alone. Even if you meet these criteria, you don’t automatically get 50/50 (or any adjustment at all).

Assuming the answer is yes, you were in a de facto relationship, the next question is, what property settlement, if any, am I entitled to?

Just like for married couples, the Court usually applies a four stage approach. You can find more information on de facto relationships and property rights here.

The law on this is long and complicated, but a short summary of the steps are:

  1. What is the asset pool? This includes all assets, liabilities, and superannuation.
  2. What contributions have each party made to the assets and to the relationship? This includes all financial contributions, non-financial contributions, contributions as a homeowner, contributions as a parent and so on…
  3. What are current and future financial circumstances going to look like? This includes looking at differences in income, comparing resources, care of children, capacity to work, age, health, etc.
  4. After considering the 3 steps above, what would be a just and equitable settlement?

As you’ve probably gathered, the answer is often not a simple one. Every case is different and you need advice that is specific to your circumstances. Most importantly, if you were in a de facto relationship and don’t formalise a property settlement, your ex may make a claim against you in the future.

Kasey Fox is a Family Lawyer and Director at Farrar Gesini Dunn, Canberra Office  and Sydney Office 

This post was originally published on 11 February 2014 and has been updated as at 4 July 2017.

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