Can a De Facto Partner Claim Property After Separation?

What Is a De Facto Relationship Under Section 4AA?

Section 4AA provides that a person is in a de facto relationship with another person if they are not legally married to one another, they are not related by family, and, having regard to all the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

Section 4AA(2) sets out the circumstances that may be taken into account in deciding that question:

• the duration of the relationship;
• the nature and extent of their common residence;
• whether a sexual relationship exists;
• the degree of financial dependence or interdependence, and any arrangements for financial support between them;
• the ownership, use and acquisition of their property;
• the degree of mutual commitment to a shared life;
• whether the relationship is or was registered under a prescribed State or Territory law;
• the care and support of children;
• the reputation and public aspects of the relationship.

Section 4AA(3) makes clear that no particular finding on any of those circumstances is necessary, and section 4AA(4) allows a court to give any matter the weight it considers appropriate. That is why two very different relationships may both be de facto, while two superficially similar ones may not be.

Two further points are often misunderstood. A de facto relationship may exist even though one party is legally married to someone else, or is in another de facto relationship at the same time. And the definition applies equally to same-sex and different-sex couples.

Does Living Together Full-Time Matter?

The phrase “living together on a genuine domestic basis” does not require an unbroken shared address. The nature and extent of common residence is one factor among several, and courts assess the relationship as a whole rather than testing a single feature.

Separate residences, work postings, caring for a relative elsewhere or periods of estrangement do not automatically preclude a finding of a de facto relationship. The Court looks for evidence of a genuinely shared domestic life — interdependent finances, shared decision-making, mutual care and support, and a relationship presented publicly as a couple.

The corollary matters too. A dating relationship, even a long or exclusive one, in which the parties keep their households, finances and domestic lives essentially separate will not usually satisfy the definition. These cases are intensely factual and turn on documents, financial records and the accounts of people who knew the couple.

Two Years Is Not the Definition

The most persistent myth in this area is that a couple “becomes de facto” after two years. Section 4AA contains no minimum period. Duration is one of the listed circumstances, and a relationship of well under two years can be a de facto relationship on the right facts.

Two years is relevant at a different stage: it is one of the alternative conditions in section 90SB that must be met before a court may make a property or maintenance order between former de facto partners. Being in a de facto relationship and being able to ask a court for orders are not the same thing.

When Section 90SB Permits a Claim

A court may make an order or declaration under Division 2 of Part VIIIAB — including a de facto maintenance order under section 90SE, a declaration of property interests under section 90SL and a property adjustment order under section 90SM — only if it is satisfied of at least one of the following:

• Duration: the period, or the total of the periods, of the de facto relationship is at least two years;
• A child: there is a child of the de facto relationship;
• Substantial contributions: the applicant made substantial contributions of the kind described in section 90SM(4)(a), (b) or (c), and a failure to make the order or declaration would result in serious injustice to the applicant;
• Registration: the relationship is or was registered under a prescribed law of a State or Territory.

This page deals with the property claim under section 90SM. A claim under section 90SE is a separate claim, decided on one party’s reasonable need for support and the other party’s capacity to pay rather than on the property adjustment factors; see our guide to de facto maintenance.

Because the duration limb refers to the total of the periods of the relationship, separate periods may be aggregated where that is legally available — relevant to couples who separated and reconciled.

Two cautions. The gateway is a threshold, not an entitlement: it says nothing about what, if anything, will be ordered, and produces no particular percentage. And the substantial-contributions limb is demanding; it is not a general fairness discretion for short relationships.

Geographical Connection and the Western Australian Exception

The federal de facto financial regime operates through a referral of power from the States, so the Court must also be satisfied of a geographical connection with a participating jurisdiction. Different provisions govern different orders: section 90SK for property declarations and orders under sections 90SL and 90SM, section 90SD for de facto maintenance orders under sections 90SE and 90SG, and section 90RG for a declaration under section 90RD about whether a de facto relationship existed.

For a property claim, section 90SK provides two alternative pathways. Under section 90SK(1), either or both parties must ordinarily reside in a participating jurisdiction when the application is made and, in addition, either both parties ordinarily resided in one or more jurisdictions that are participating jurisdictions at that time for at least a third of the de facto relationship, or the applicant made substantial contributions of the kind described in section 90SM(4)(a), (b) or (c) in one or more of those jurisdictions. Alternatively, section 90SK(1A) is satisfied — instead of the combined requirements in section 90SK(1)(a) and (b) — where the parties were ordinarily resident in a participating jurisdiction when the de facto relationship broke down. Present residence by itself does not necessarily satisfy the test.

The statutory tests are more technical than that summary, and small factual differences change the answer. If either of you has moved interstate or overseas, get advice promptly rather than assuming the Court can or cannot deal with the matter.

Western Australia is different. It did not refer de facto financial powers to the Commonwealth as the other States did, so de facto property and maintenance matters with a Western Australian connection are generally governed by Western Australian legislation and processes rather than Part VIIIAB of the Family Law Act. Obtain advice in that jurisdiction.

The Two-Year Application Deadline

Under section 44(5), proceedings for orders under section 90SE or section 90SM must generally not be instituted more than two years after the end of the de facto relationship.

After that period, an application can only be made with the leave of the Court under section 44(6). Leave is not automatic. The Court must be satisfied that hardship would be caused to a party to the relationship or to a child if leave were not granted, or — in the case of an application for maintenance — that at the end of the limitation period the applicant would have been unable to support themselves without an income-tested pension, allowance or benefit.

There is a further trap: the date the relationship ended is often itself contested, particularly where the parties kept sharing a home, finances or holidays afterwards. Do not wait until the deadline approaches. Our guide to time limits for property settlement in Australia covers limitation periods and leave in detail.

What the Court Considers Under Section 90SM

Where the gateway, jurisdiction and time requirements are satisfied, the Court applies section 90SM, the de facto equivalent of section 79. At a high level the Court:

• identifies the existing legal and equitable rights and interests in property of the parties, and their liabilities;
• considers the financial and non-financial contributions each party made to the acquisition, conservation or improvement of property, and their contributions as homemaker and parent;
• considers the current and future circumstances of each party, including matters such as age, health, income, care of children and capacity for employment;
• considers the effect of any family violence on a party’s ability to make contributions, and the economic effect of family violence on their current and future circumstances, where the evidence supports it; and
• must not make an order unless satisfied that, in all the circumstances, it is just and equitable to do so.

The framework was restated by the Family Law Amendment Act 2024 (Cth), with the property amendments taking effect on 10 June 2025. Under item 68 of Schedule 1 to that Act, the property-framework amendments apply both to proceedings instituted on or after 10 June 2025 and to proceedings instituted before that date and not finally determined before it, except where the final hearing had already commenced before 10 June 2025. Other amendments made by the Act, including the statutory duty of disclosure, have their own commencement and application provisions and should not be assumed to follow the same rule.

What has not changed is that there is no automatic 50/50 division, no fixed formula and no mandatory step-by-step test. For a fuller discussion see our articles on the property settlement process and on why a settlement is not automatically 50/50.

What Property, Liabilities and Financial Resources Are Relevant

A common shorthand is that “everything goes in the pool regardless of whose name it is in”. That is too blunt. Legal ownership is not conclusive — an asset in one partner’s sole name can plainly be part of the case — but characterisation still matters, and it is an evidentiary exercise.

Real estate, bank accounts, shares, business interests, vehicles, valuables and superannuation interests are ordinarily identified as property. Something a party may benefit from but does not own or control — an expected inheritance, or in some cases a trust interest — may instead be a financial resource, or given no separate treatment.

Liabilities work the same way. Mortgages, loans, credit cards, tax debts and guarantees are usually identified, but treatment depends on their nature and how they were incurred: a debt taken on for a joint purpose is not necessarily treated like one incurred recklessly or after separation for one party alone.

Superannuation, Trusts and Companion Animals

Superannuation is treated as property for the purposes of the de facto regime and can be split, either by agreement in a compliant form or by court order. A split does not convert superannuation into accessible cash: the amount transferred generally remains preserved until a condition of release is met. See our guide to superannuation splitting in Australia.

Trusts require analysis rather than assumptions. Depending on the deed, who controls the trustee and appointor roles, the pattern of distributions and the evidence, a discretionary trust interest may be property of a party, a financial resource, or neither. Expert accounting evidence is often required.

Companion animals are now dealt with by bespoke provisions that direct the Court to specified considerations when making orders about them. Our article on pets after separation covers this in detail.

Agreement, Consent Orders and Financial Agreements

Most de facto financial matters resolve without a contested hearing. Four pathways exist, and the differences matter:

• Informal agreement alone: it records intentions but generally gives no enforceable finality, does not prevent a later application within time, and cannot compel a land titles office or superannuation trustee to act.
• Consent orders: the Court makes binding orders in agreed terms and can deal with property transfers and superannuation splits. The Court usually considers the application without either party attending, although it may require further information or attendance.
• A financial agreement: made under Division 4 of Part VIIIAB, before, during or after the relationship. Strict requirements apply, including independent legal advice for each party. See our guide to binding financial agreements.
• Contested proceedings: an application is filed and the matter proceeds through the Court’s case management pathway, with dispute resolution along the way.

Transferring real property, splitting superannuation and achieving finality each require the correct mechanism, properly drafted. Whether particular duty or tax outcomes are available depends on the documents and your circumstances, so check with your lawyer and accountant before signing — nothing here is tax advice.

Disclosure and Practical Steps After Separation

Parties to financial or property matters carry extensive disclosure obligations. There is a statutory duty of disclosure in proceedings under section 90RI, and separate pre-action and procedural disclosure requirements in the rules and the Court’s practice directions. They overlap but are not the same thing, and it is inaccurate to say that all disclosure requirements were simply relocated from the rules into the Act. The Court’s guidance, linked below, is the practical starting point.

Beyond disclosure, sensible steps after separation are about information and preservation, not tactics:

• obtain current information about assets, liabilities, superannuation and income;
• preserve records — statements, loan documents, contracts and evidence about the relationship itself;
• comply fully and early with disclosure duties; incomplete disclosure damages credit and costs money;
• do not dispose of, conceal, encumber or dissipate assets; doing so can be restrained, set aside and held against you;
• seek urgent advice if a sale, transfer, refinance or large withdrawal is threatened;
• understand that a caveat requires an existing caveatable interest in the land and is not available merely because a de facto property claim exists — see our article on caveats over property after separation;
• review your Will, enduring powers of attorney and superannuation death benefit nominations — separation does not necessarily revoke them automatically.

Family Violence, Urgent Risks and Death

Where the evidence supports it, the economic effect of family violence may be relevant both to the assessment of contributions and to the current and future circumstances of a party under the section 90SM framework. That is a matter of evidence, and it does not guarantee an adjustment or any particular result.

Depending on the facts, urgent protective or procedural orders may also be available — for example, injunctions restraining dealings with property. If you are concerned about your safety, contact police or a family violence service first.

The position also changes significantly if a party dies before proceedings are commenced: the pathway available in life may no longer be open, and estate and succession questions arise instead. Obtain advice urgently rather than assuming the claim survives unchanged.

Practical Checklist

1. Test the relationship against section 4AA, and note the date it ended.
2. Identify which section 90SB gateway applies.
3. Check the geographical connection, and get Western Australian advice if that State is involved.
4. Diarise the section 44(5) deadline from the earliest arguable separation date, not the latest.
5. Assemble a full picture of assets, liabilities, superannuation and financial resources on both sides.
6. Comply with disclosure, preserve records, and do not deal with significant assets unilaterally.
7. Document the resolution properly — consent orders or a financial agreement, not an informal understanding.
8. Review your Will, powers of attorney and superannuation nominations.

If you need advice about a de facto relationship, eligibility to bring a property claim, time limits or documenting a settlement, contact Parke Lawyers.

Frequently Asked Questions

Sources and Further Reading

• Family Law Act 1975 (Cth) — current compilation, including sections 4AA, 44(5)–(6), 90RG, 90RI, 90SB, 90SD, 90SE, 90SK and 90SM (opens in a new tab)
• Family Law Amendment Act 2024 (Cth) — Schedule 1, including item 68 (application of the property amendments) (opens in a new tab)
• Federal Circuit and Family Court of Australia — Financial or property: We cannot agree (opens in a new tab)
• Federal Circuit and Family Court of Australia — Financial or property: We have agreed (opens in a new tab)
• Federal Circuit and Family Court of Australia — Family Law Practice Direction: Financial or property proceedings (opens in a new tab)