In Australia, not all committed relationships involve a wedding ring. Many couples live together, share finances, raise children and build a life without ever getting married, as de facto partners. These relationships, known as de facto relationships, are recognised under the law and carry many of the same legal rights and responsibilities as marriage, especially when it comes to parenting matters and property settlement after separation.
This practical guide outlines what you need to know about property rights in a de facto relationship, including how the law defines these relationships, how property is divided and what to do when things get complicated.
What Is The Definition Of A De Facto Relationship?
A de facto relationship is when two people (regardless of gender), live together on a genuine domestic basis as a couple, without being legally married.
To be recognised under the Family Law Act 1975, a de facto relationship typically must meet one or more of the following conditions:
- The couple has lived together for at least two years,
- They share a child,
- One or both partner/s have made substantial financial or non-financial contributions, and serious injustice would occur without recognition of their relationship status.
The law looks at many factors to determine if a de facto relationship exists, such as shared living arrangements, financial interdependence, mutual commitment and whether others view the couple as a couple.
Property Rights for De Facto Couples
When a de facto relationship breaks down, the division of property and assets works similarly to that of married couples. Under the Family Law Act, de facto couples can apply to the Federal Circuit and Family Court of Australia for a property settlement, which may also include financial support such as spousal maintenance.
The property pool looks at all property owned by both parties, including:
- Shared property (like a family home)
- Individually owned property acquired before the relationship, during the relationship and post separation
- Debts and liabilities
- Superannuation
The court also considers various types of contributions, such as financial contributions (like income and mortgage payments), non-financial contributions (such as homemaking, property maintenance and raising children), along with the future circumstances of both people (which takes into account earning capacity, care of children and health issues) to reach a fair outcome.
De Facto Property Settlement Process
When a de facto relationship ends, property settlement is aimed at a ‘just and equitable‘ division of assets, debts and superannuation.
The general process includes:
- Identifying and valuing assets and liabilities
- Assessing each party’s contributions—both financial and non-financial
- Considering future needs
- Making or approving a fair and equitable division
De facto couples can reach a private agreement with their former partner, but to make it legally binding under Australian law, it must be formalised via a Consent Order (approved by the court) or a Binding Financial Agreement.
Consent Orders in De Facto Relationships
Consent Orders are written agreements approved by the Federal Circuit and Family Court of Australia that make property or parenting arrangements legally binding after separation. They can be used by de facto couples to finalise a fair division of assets. Both parties must agree, and the Court must be satisfied that the orders are just and equitable.
Financial Agreements in De Facto Relationships
A Binding Financial Agreement (BFA) is a document that outlines how a couple will divide their property and debts if a relationship ends.
BFAs can be made:
- Before the relationship starts (like a prenup)
- During the relationship
- After separation
BFAs help avoid disputes and ensure financial clarity. However, they must meet strict legal requirements, including each party receiving independent legal advice. Without this, the agreement may not be enforceable.
Parenting & Child Support in De Facto Relationships
De facto couples who share children have the same rights and obligations as married couples regarding parenting matters and child support.
It’s important to be aware that:
- Parenting plans or Consent Orders can formalise care arrangements
- The best interests of the child are always the Court’s priority
- Child support can be claimed regardless of marriage status
- Payments are calculated based on income, time spent with the child and other factors
If there’s disagreement about parentage, the Court can order DNA testing.
Time Limits for Property Settlements
There are important time limits that apply in de facto relationship cases:
- You must apply for a property settlement or spousal maintenance within 2 years of separation.
If you miss this deadline, you may still apply, but you’ll need to request special permission from the Court and explain the reasons for the delay (such as hardship or exceptional circumstances).
To avoid complications, it’s wise to seek legal advice early after separation.
When It Gets Tricky: Complex De Facto Situations
Sometimes, it’s not clear-cut whether a de facto relationship existed.
Things can get tricky when:
- One partner denies that the relationship ever existed
- The couple lived apart at times (for work or family reasons)
- One party is still legally married to someone else but is cohabiting with a new partner
The Court will assess all the facts, including the length of the relationship, financial arrangements, and emotional interdependence. Even if you didn’t live together full-time, you may still be considered de facto if you lived on a “genuine domestic basis.” Some de facto partners may also choose to be in a registered relationship, which can provide clear dates as to when a relationship begins.
This is where legal advice is especially important, because these grey areas can have serious implications for property, parenting, and financial outcomes.
Addressing De Facto Relationship Law With Confidence
De facto relationships are fully recognised under Australian family law. If your relationship ends, you have the right to seek a fair property division, child support, and in some cases, spousal maintenance, just like a married couple.
The key is understanding your rights and seeking professional legal advice. A family lawyer can help you:
- Determine whether your relationship meets legal criteria
- Guide you through property settlement or financial agreement processes
- Assist in creating legally binding documents
- Provide advice on parenting plans and child support
- Represent you in Court, if required
Next Steps: Get Advice About Your De Facto Relationship Property Rights
If you are ending a long-term de facto relationship, understanding your property rights is essential.
Here’s what you can do next:
- Seek independent legal advice to understand your position
- Consider formalising your agreement through a Consent Order or BFA
- Act promptly, especially within the 2-year time limit
- Put children’s needs first in any parenting arrangements
- Work toward a fair and respectful resolution wherever possible
At the end of the day, knowing your rights and getting the right support will help you make informed decisions so that you can move forward with confidence and peace of mind. Get in touch with our property settlement lawyers today, for advice on your next steps.
