When a de facto relationship ends, it can raise difficult questions about who is entitled to what. Whether you were in a same-sex or opposite-sex relationship, the law provides the same framework to resolve property, parenting and financial matters, similar to that applied to married couples.
This article explains your de facto relationship break-up entitlements, what the Family Law Act says, and how to address property settlement, financial support and parenting decisions following de facto separation.
What is a de facto relationship?
Under the Family Law Act, a de facto relationship exists when two people are not legally married but live together on a genuine domestic basis as a couple. You can be in a de facto partnership whether you are in a same sex or opposite sex relationship.
You’re generally considered de facto if:
- You lived together for at least two years
- You share a child or are an intended parent
- One partner made substantial contributions (financial or non-financial), and a serious injustice would occur if a property settlement were denied
Even if you lived apart for work or family reasons, the court may still find you were in a de facto relationship if there was a shared life and sexual relationship, financial interdependence or joint property interests. In some cases, registering your relationship may help clarify your legal status.
What happens when a de facto relationship ends?
When a de facto relationship ends, one party can make a de facto claim for a share of the property, financial resources or spousal maintenance, just as married couples can. These claims are dealt with in the family court system under the same prescribed law.
Understanding your de facto break-up entitlements
Your de facto relationship break-up entitlements will depend on a number of factors, including:
- The size and structure of the asset pool (including property, money and superannuation)
- Financial and non-financial contributions each partner made during the relationship
- Future needs of each party (e.g. age, health, earning capacity, parenting duties)
- Whether a binding financial agreement exists
- The length and nature of the relationship
There is no automatic 50/50 property split. The court considers what is “just and equitable” in each case. The longer the relationship and the more intertwined the finances, the more likely property will be divided similarly to married couples.
Time limits for making a de facto property settlement claim
There is a strict time limit: you must apply to the court within two years of the date of de facto separation. If you miss this window, you will need permission from the court and will need to show hardship or unusual circumstances.
Making your agreement legally binding
Many de facto couples agree on how to divide assets without going to court. To protect yourself, you should formalise any agreement through one of the following:
Consent Orders
If both parties agree, you can apply for Consent Orders. These make your agreement legally binding and enforceable.
Binding Financial Agreement (BFA)
This is a legal document that outlines how property, superannuation and money will be divided if the relationship ends. It must be signed by both parties, and you must each obtain independent legal advice.
Without a BFA or Consent Orders, informal arrangements may not hold up if there’s a dispute.
What about parenting and child support?
If you have children with your de facto partner, you both retain parental responsibility under family law. The child’s best interests remain the primary consideration. You may choose to create a parenting plan or apply for parenting orders.
The law also requires child support to be paid where appropriate. Services Australia manages this process based on income, care arrangements and other factors.
Can I get spousal maintenance?
You may be entitled to financial support from your former partner if:
- You cannot reasonably support yourself due to age, health, child care or earning capacity
- Your ex-partner has the capacity to pay
Spousal maintenance is separate from property settlement and can be negotiated or determined by the court.
How the court decides a de facto property claim
If a matter proceeds to a final hearing, the court follows a four-step process:
- Identify and value the property pool (assets, liabilities and financial resources)
- Consider financial and non-financial contributions by both parties
- Assess future needs and disparities between the parties
- Make adjustments to reach a fair and equitable outcome
Factors such as length of the relationship, whether there are children, and each party’s earning capacity are key to the final decision.
What if there’s a dispute about whether we were de facto?
Sometimes, one partner denies the existence of a de facto relationship. In these cases, the court will look at all the circumstances, shared finances, housing, emotional support, and whether others considered you a couple, to determine whether you were in a marriage-like relationship.
You can seek an order declaring a de facto relationship existed under section 90RD of the Family Law Act. This may be necessary if the other party challenges your right to make a claim.
Other legal considerations – Wills, superannuation and estate rights
When a de facto relationship ends, you may also need to update:
- Your Will and superannuation beneficiaries
- Any enduring power of attorney or advance health directive
- Insurance or financial arrangements linked to your former partner
Failure to do so could mean your ex-partner is still entitled to benefits or has decision-making power in the event of your incapacity. De facto partners may also have a right to inherit from a deceased person’s estate, especially if they were financially dependent or lived together for an extended period. In some cases, you may need advice about estate litigation or how to challenge a Will.
Final thoughts: understanding your de facto break-up entitlements
Property settlements after a de facto relationship ends can be complicated, especially when there are shared assets, children or disagreements about what’s fair. Every situation is different, and getting the right legal advice early can make a significant difference.
A Family Lawyer can help you:
- Understand your rights and entitlements under the Family Law Act
- Clarify whether your relationship is legally considered de facto
- Identify what’s included in the property pool and assess your contributions
- Negotiate a fair property settlement or financial support arrangement
- Draft or review a Binding Financial Agreement
- Formalise any agreement through Consent Orders
- Represent you in court if an agreement can’t be reached
Even if your separation is amicable, it’s essential to protect your interests and avoid future disputes.
Need advice about your de facto separation or break-up entitlements?
Contact one of our experienced Family Lawyers at Tonkin Legal for guidance on your next steps. We can help you understand your position and make informed decisions about your future.