When a de facto relationship ends, partners are entitled to similar legal rights as married couples under the Family Law Act. This means both parties have the right to apply for property settlements, maintenance, and child-related orders.
De Facto Separation and Family Law: Your Entitlements
Until 10 June 2025, the process for dividing property usually follows this approach:
- Identifying property, liabilities and financial resources: This includes all assets, financial resources, and liabilities accumulated before, during or after the relationship, whether registered in one or both partners’ names.
- Contributions: The court evaluates both financial and non-financial contributions, such as home-making, parenting, and other duties.
- Current and Future Considerations: Other factors are considered such as the future needs of each party, including health, income, age, the standard of living during the relationship and the care of children.
- Making Orders: The court determines a just and equiatable distribution of assets and liabilities.
The court cannot make an order unless it is just and equitable to do so.
From 10 June 2025, the property settlement framework is set out more clearly in the Family Law Act 1975 (Cth). There is also express recognition give if:
- The effect of family violence on contributions and current and future considerations.
- Wastage of assets if it has been done intentionally or recklessly and is material.
- The nature of liabilities and circumstances relating to them.
Having a lawyer who specialises in family law is crucial to navigating these steps and ensuring you receive a fair outcome.
How Is a De Facto Relationship Defined?
A de facto relationship is defined as a domestic partnership in which two people live together on a genuine domestic basis but are not married. These relationships can involve heterosexual or same-sex couples, and the law recognises them as equivalent to marriage in many areas, including property rights and child support. A de facto partnership can also exist when one or both partners are in a marriage.
To determine whether a de facto relationship exists, the court considers factors like shared life, financial dependence, emotional connection, sexual relationship, and public recognition of the relationship. Importantly, you don’t need to meet all of these criteria to be considered in a de facto relationship. The length of the relationship and the nature of your shared life are key considerations.
Time Limits for De Facto Claims: Don’t Miss Your Deadline
After separating from a de facto partner, you typically have two years from the date of separation to file a claim for property settlement in the Family Court. If you miss this deadline, you may be required to seek special permission from the court, which is not always guaranteed.
However, there are exceptions. If you have children together or if you have made substantial contributions to the relationship, the court may allow you to make a claim even after the two-year period has ended. Section 90SB of the Family Law Act 1975 outlines the conditions under which these claims can be made, including:
- The relationship must have lasted at least two years,
- There must be a child in the relationship,
- Substantial contributions were made by one party, and failing to grant the order would result in serious injustice or
- The relationship is registered under a law in a State or Territory.
Proving De Facto Status or Disputed Relationships
Proving that you were in a de facto relationship can sometimes be contentious, especially if one party disputes the relationship’s existence. The court will look at factors such as whether you lived together, shared financial responsibilities, or had a sexual relationship. These elements can be hard to demonstrate, but they are crucial for establishing the legal recognition of the relationship.
If there is a dispute, you may need to present evidence such as witness statements, photographs, joint bank statements rental agreements or other evidence of the relationship. A family law specialist can suggest documents which may assist you to prove your case.
Property Settlement and Financial Agreements: The Key to Financial Security
When separating, one of the most important aspects to resolve is the division of property. The law relating to de facto property settlements is similar to that in marriages. The property pool can include the family home, joint investments, superannuation, and personal property. Both financial and non-financial contributions made by each party will be considered when dividing the assets.
You and your former partner may choose to reach an agreement privately. This is how most couples finalise their arrangements. If you can agree on the division, you can formalise the settlement through a financial agreement or by filing consent orders with the court. These agreements are legally binding and provide a clear path forward.
If a settlement cannot be reached, you may need to issue court proceedings. This does not mean that you will necessarily proceed to a final hearing in court. Most cases are resolved by negotiation or at a mediation. However, if agreement cannot be reached, a family law judge will decide on the property split and maintenance requirements based on fairness and equity.
Registered Relationships: Extra Legal Protection
In some jurisdictions, de facto couples can register their relationship, making it easier to prove the relationship’s existence should it break down. This legal recognition simplifies the process of applying for financial orders and other legal protections. Registering the relationship provides clear evidence that the relationship existed and can assist with resolving property disputes more efficiently.
Although not all states in Australia allow for relationship registration, in places like Victoria, registering a same-sex or heterosexual de facto relationship is possible, providing extra legal rights in the event of separation.
Disputes Over Children: Same Rules, Same Rights
When a de facto relationship ends, disputes often arise about child support, custody, and parenting arrangements. The court handles these issues in the same manner as it does for married couples, prioritising the best interests of the child.
If the parents cannot agree on a parenting plan or visitation arrangements, the court will step in to make decisions. It will also consider the child’s relationship with each parent, the parent’s ability to provide care, and the child’s safety. The court may issue parenting orders, which both parents must follow.
In cases where there are disputes over financial support for children, the Federal Circuit and Family Court of Australia will make orders based on the child’s needs and each parent’s ability to contribute. If parents cannot reach a private agreement, child support payments can be arranged through Services Australia – Child Support.
Spousal Maintenance and Support: What You’re Entitled To
Spousal maintenance refers to the financial support one partner may be entitled to from the other after the end of a de facto relationship. The court will assess the financial needs of the party seeking support and the other party’s ability to provide this support. Factors such as future needs, income, health, and any children to care for are considered in the decision.
The law allows for spousal maintenance if one party cannot support themselves financially due to age, illness, or other reasons. However, you must apply for maintenance, and the court will assess the situation before granting it.
Spousal maintenance can be paid in different ways:
- A weekly, fortnightly or monthly amount; and/or
- Payment of the mortgage, rates, health insurance, utility bills etc; and/or
- A lump sum.
Seeking Legal Advice: Your First Step After Separation
Seeking legal assistance after separating from a de facto partner is essential to protecting your rights and entitlements. A family lawyer can provide expert guidance on property settlements, child custody and spousal maintenance.
They can also help you understand the Family Law Act relative to your situation, ensuring that you are aware of all your legal rights and options. Independent legal advice is particularly important if you’re facing disputes over property, children or financial support.
A lawyer can provide specialist family law advice tailored to your specific situation and help you avoid costly mistakes.
The Road Ahead After a De Facto Relationship Ends
Ending a de facto relationship can be emotionally and financially challenging. Fortunately, the Family Law Act provides clear pathways for resolving disputes and dividing assets fairly.
When the relationship breaks down, you have the right to apply for a property settlement, just like a married couple. To qualify, the relationship must have lasted at least two years or involve children or there have been significant contributions by the party who is making the claim.
If no agreement can be reached with your ex-partner, you can apply for orders in the Federal Circuit and Family Court of Australia. If your matter is not resolved by negotiation or mediation it will be decided by a judge who will determine a fair and equitable settlement.
What to Expect in Your De Facto Claim
In a de facto separation, the property pool includes assets acquired during the relationship, such as homes, investments, superannuation, and other joint assets. The court will carefully assess how both parties have contributed to the relationship, financially and otherwise.
At a final hearing, the judge will weigh each party’s contributions and future needs, making an order that reflects justice and equity. It’s important to approach these proceedings with professional legal guidance to help you achieve the best possible outcome.
Conclusion: Protecting Your Rights in De Facto Separations
The breakdown of a de facto relationship can be difficult, but understanding your legal rights and entitlements is the first step toward securing your future. Whether you’re seeking property division, spousal support, or custody of children, legal professionals, such as our team at Forte Family Lawyers, can guide you through every step.
Remember, the Family Law Act ensures that de facto partners are entitled to similar rights as married couples, and with the right support, you can confidently pursue a fair resolution to your situation.
If you require assistance with any aspect of your de facto family law matter, or need to understand your entitlements or responsibilities, please get in touch with our highly experienced team of de facto lawyers.