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Property settlements and de facto relationships

Information about the procedure for getting a court to assist with adjusting property interests following the breakdown of a de facto relationship.

Parties are encouraged to try to resolve disputes before applying to courts for an order. For financial matters, it is important to get independent legal advice before agreeing to an arrangement for division of property. The lawyer may also be able to assist the parties to reach an agreement without going to court. These orders are called consent orders.

The court requires people who are applying for financial orders to follow pre-action procedures before filing an application.

See Before you file – pre-action procedure for property cases(opens in a new window).

When can de facto couples get a property settlement from a family law court?

A de facto couple can include same-sex couples as well as heterosexual couples who have chosen not to marry. Sometimes it is not clear whether or not a de facto relationship exists between the couple. Where the existence of a de facto relationship is in dispute the court must look carefully at the relationship as a whole, evaluating whether, and to what degree certain indicators exist.

See Proving or disproving a de facto relationship.

It is possible for a couple to apply to court for a declaration as to their rights to property after their relationship has ended.

See s. 90SL—Family Law Act 1975 (Cth)(opens in a new window)

Length of relationship

A de facto couple can have their property divided under Part VlllAB of the Family Law Act 1975 if:

  • they have been in a relationship for a total of 2 years
  • they have a child born of the relationship
  • one party has made substantial contributions to the relationship so that it would be a serious injustice not to make an order, or
  • they have formally registered their relationship (for example under the Victorian relationship register).

See s. 90SB—Family Law Act 1975 (Cth)(opens in a new window).

Geographical requirement

The couple must also have spent at least one third of their relationship in Australia (excluding Western Australia).

An exception can be made here if the applicant party has made a significant contribution to the relationship.

Couples who have spent two thirds of their time together overseas, for example in New Zealand, are generally not able to have their property divided under the Family law Act 1975.

Note: Couples who have spent a significant part of their relationship in Western Australia (WA) are treated differently as the WA government did not refer its powers over unmarried couples to the Commonwealth. This means that couples who have spend two thirds of their relationship in WA are not able to have their property divided under the Family law Act 1975.

If geographical requirement not met

De facto couples who do not meet the geographical requirement will need to get legal advice. It is possible that they will be able to use the state law under the Victorian Relationship Act 2008. If not, they must rely on the common law.

See s. 6—Relationships Act 2008 (Vic)(opens in a new window).

Time limits

A de facto couple must apply to court to have their property divided within 2 years from the date that they finally separate.

Property settlement for people in de facto relationships are dealt with under a different part of the Family Law Act, but apart from the gateway and geographical requirements the same process applies.

See s. 90SM—Family Law Act 1975 (Cth)(opens in a new window).

How property is divided

If the couple are found to be in a de facto relationship and the court has power to make a property adjustment (on the basis of a child, the length of the relationship, registration of their relationship or significant contribution by one of the parties), and the geographical requirements are satisfied, the court may then make an order adjusting property rights. While this is dealt with in a separate Part of the Family Law Act 1975, the provisions essentially mirror the property adjustment requirements for married couples.

See How is property divided?

Less formal options

Going to court is expensive, time consuming and emotionally scarring. Just like married couples, people in de facto relationships are encouraged to try to try to work out how to divide their property without having to go to court. Their options are:

  • informal agreement between themselves (not binding or enforceable)
  • binding financial agreement (enforceable by the courts but may be overturned in some circumstances)
  • consent orders (drawn up by the parties or their lawyers and made into orders by the court (enforceable)

See Options for property settlement.

More information

Legislation

Family Law Act 1975 (Cth)

  • s. 4AA—defines a de facto relationship
  • Part VlllAB—financial matters relating to de facto couples
  • s. 90SM—alteration of property interests

See Family Law Act 1975 (Cth)(opens in a new window)

Relationships Act 2008 (Vic)

  • s. 6—application to register a registerable relationship
  • s. 17—the relationships register

See Relationships Act 2008 (Vic)(opens in a new window).

VLA factsheet

Property settlement for de facto couples

Property settlement for married couples (doc, 193.5 KB)(opens in a new window)

This fact sheet is designed for clients who are separating after a marriage breakdown.

Property settlements for de facto couples (doc, 192.5 KB)(opens in a new window)

This fact sheet is designed for de facto clients who want to divide their property when they separate.

Updated