A client rang us in shock, certain his ex-partner making a claim for property settlement was not legally possible. He and his partner had not lived together for two years, so he figured that a de facto status, and the claim he was now looking at, did not apply to him.
He had it half right and yet entirely wrong. Two years together is one of four ways into de facto rights, not the test, and it is not a rule about how long you shared an address. Plenty of people qualify without ever reaching two years, and plenty who shared a home for years still fall outside it.
Do you have de facto property settlement rights? The quick check
Treat this as a first read on where you stand, not a guarantee. A court can decide on the whole picture if you and your ex don’t agree, after the fact.
You likely qualify as a genuine de facto couple if any one of these is true:
- You were together at least two years in total.
- You have a child together.
- You registered your relationship under a state or territory law.
- You made substantial contributions and it would be a serious injustice if no order were made.
Any one is enough. You do not need all four (Family Law Act 1975 (Cth), s 90SB).
You likely do not qualify if:
- None of those four applies to you.
- Your relationship has no real connection to a state or territory covered by the federal de facto rules, what the law calls a participating jurisdiction (s 90SK).
Two conditions sit over all of it. The relationship has to have broken down on or after 1 March 2009, or 1 July 2010 if South Australia is your only connection. Western Australia runs its own de facto property regime, so the sections on this page are not the ones that decide a matter there (Federal Circuit and Family Court of Australia).
You have two years to make a property settlement claim, and if you miss that date, you need to apply for special permission
This is where a lot of people get caught out.
From the day a de facto relationship ends, you have two years to apply for a property settlement or spousal maintenance, the standard time limit in Australia (s 44(5)). The clock runs from separation, not from a court date or the day you sit down with a lawyer.
Miss it and you may miss the chance to do so, unless you ask the court for permission to apply after time limits, which it may or may not grant. It grants this extension only where refusing would cause hardship to you or a child. On an application for maintenance there is a second route, where you could not have supported yourself without an income tested pension (s 44(6)).
Permission is not a formality.
What you can actually claim
Once you are through the gateway of establishing you do have de facto property rights, the financial side of a de facto separation looks much like a married one. Five things are on the table, and three of them turn on that gateway. The last two do not.
- Property settlement. A court can adjust who owns what between you, whatever the title says.
- Spousal maintenance. Ongoing support from one of you to the other, in limited circumstances.
- Superannuation splitting. Super counts as property and can be split, and it is the asset people most often forget to put on the list.
- Parenting orders. Where the children live, who they spend time with, and who makes the big decisions.
- Child support. Not tied to marriage at all. It applies whether you were married, de facto, or never shared an address.
How a de facto property split is decided now
Some of what you will read online about de facto property settlement may be out of date. The framework changed on 10 June 2025.
The Federal Circuit and Family Court of Australia works through property claims in a specific order now. It identifies what you own and what you owe. It weighs what each of you contributed, financially and otherwise. It weighs where each of you stands now and is likely to stand in future, including earning capacity, health and the care of children. And it has to be satisfied that making an order is just and equitable at all (s 90SM(2) to (5)).
One change worth naming: the effect of family violence is now an express consideration on both limbs, contributions and future circumstances (Federal Circuit and Family Court of Australia, property changes from 10 June 2025).
So what comes out the other end? Sometimes 50-50. Sometimes 60-40. Sometimes 70-30. There is no magic number, and anyone who gives you one before they have seen your finances is guessing. For how a settlement runs, see our property settlement page.
When spousal maintenance is payable
Maintenance is not a payment for having been in the relationship. A former de facto partner has to support the other only so far as they are reasonably able, and only where the other cannot support themselves adequately: because of the care of a child of the relationship under 18, because of age or incapacity, or for another adequate reason (s 90SF(1)). The same two-year deadline applies.
Parenting: being de facto changes nothing
Parenting has never turned on whether you were married. The question is what is in the child’s best interests, either way. If you have read that de facto partners enjoy equal parental rights, that wording is out of date, and so is the presumption of equal shared parental responsibility, removed on 6 May 2024 (Federal Circuit and Family Court of Australia, changes from 6 May 2024).
How a de facto relationship gets proved
There is no certificate for this unless you registered. The test is whether you were a couple, not married to each other and not related by family, living together on a genuine domestic basis, and the court weighs a list of circumstances to answer it: how long you were together, your common residence, whether there was a sexual relationship, financial dependence or interdependence, how property was owned and used, mutual commitment to a shared life, whether the relationship was registered, the care of children, and how the relationship was seen publicly (s 4AA(2)).
No single one of those has to be present (s 4AA(3)). A court can find a de facto relationship without a joint account or a shared address, if the rest of the picture holds together.
So what gets put in front of a judge? Small, ordinary, provable things.
The judge will look at little things like where the toothbrush of one of the parties was, and if they had a toothbrush at another person’s house, and that might be an extra piece of evidence to establish that these people had a shared commitment to each other.
The same logic covers couples who are not even in the same country. If your partner lives overseas you may not have a shared account or a shared bill to point to. What you show instead is a routine that involves your partner, and it needs to be a daily one.
Where the courts have drawn the line
Two decisions show how far apart the answers can sit.
In Fairbairn v Radecki (2022), the High Court held that living together does not require physically sharing a residence, and that a relationship breaks down when one party acts inconsistently with a fundamental premise of it.
In Jonah & White (2011), 17 years together was still not a de facto relationship, because the two lives had never merged. Note the name: Jonah & White, not Jonah v White.
What we actually see
People rarely work out for themselves that they are in a de facto relationship. They get told.
The client I opened with called because he had just realised his business could be going to his ex-partner. We had to explain what a de facto relationship is before we got anywhere near the property, and he told us he already knew it: you have to be living together for two years, and they had not been. His relationship met a different criteria for de facto though, and it only takes one. Once that has been established, the property a court can look at includes a business interest, not just the house and the savings.
There is also a case where a de facto relationship was found even though the couple were not living together and were both seeing other people, because everything else was there: shared finances, real commitments, nights spent together.
Nobody assesses their own relationship the way a court does.
Registering a de facto relationship, and what it does not do
Registration is a shortcut through the first question, not a set of extra rights. Register and you satisfy one of the four gateways outright, and you make the existence of the relationship far harder to dispute. It does not create rights you would not otherwise have.
In New South Wales, you register under the Relationships Register Act 2010 (NSW).
Binding financial agreements
You can also settle a lot of things regarding money and assets in advance instead of arguing later. A binding financial agreement is a written agreement about how your property is dealt with if the relationship ends, and you can make one before you move in together, during the relationship, or after it is over. Most people call it a prenup, and it has to be drawn up properly to hold.
Not sure which side of the line you are on?
Most people in this position have no idea whether they have a claim until somebody tells them.
Call our team on 1300 614 732 and have a free ten-minute discovery call with our de facto lawyers. We will tell you whether you look like you qualify and what would be on the table. If you have no claim, you will hear that too. We have this conversation every week.
Frequently Asked Questions
What are de facto relationship rights in Australia?
They are the rights that apply when a de facto relationship breaks down: a property settlement, spousal maintenance, superannuation splitting, parenting orders and child support. Broadly the same financial rights a married couple has. The financial ones, property, maintenance and superannuation, require you to meet one of the four gateways in the Family Law Act. Parenting orders and child support do not.
How long do you have to be together to be considered de facto?
There is no fixed minimum. Two years together is one gateway to a property claim. You can also qualify by having a child together, registering the relationship, or by substantial contributions where it would be a serious injustice if no order were made. Any one is enough.
Can you be in a de facto relationship without living together?
Yes. The test is whether you were a couple living together on a genuine domestic basis, and no single circumstance on the list has to be present. The High Court has held that living together does not require physically sharing a residence.
How long after separating can a de facto partner claim property?
Two years from the date the relationship ends. That is the standard application period, and it runs from separation rather than from any court date. After that you need the court’s permission to apply at all, which is granted only in limited circumstances.
Do de facto partners have the same property rights as married couples?
On the financial side, broadly yes. A court can adjust property, order spousal maintenance and split superannuation much the same way. The difference is that a de facto couple has to get through a gateway first, and a married couple does not.
Does registering a de facto relationship change your rights?
It satisfies one of the four gateways outright and makes the relationship far harder to dispute, so it removes a fight. It does not create rights you would not otherwise have. A couple who qualify without registering are in the same position.
What happens if you miss the two-year deadline?
You have to ask the court for permission to apply out of time. It grants that only where refusing would cause hardship to you or a child. On an application for maintenance there is a second route, where you could not have supported yourself without an income tested pension. Permission is not automatic, so get advice well before the two years are up.
