De Facto Separation and Property Settlement in Queensland
If you have separated from a de facto partner, you generally have two years from the breakdown of the relationship to apply to the court for a property settlement. After that you need the court’s permission. Superannuation can be divided as well as property, and being unmarried does not weaken your position as a parent.
How we help with a de facto separation
We act at every stage, from a first conversation about where you stand through to a contested application. We can:
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How long do you have to claim after separating?
Two years from the breakdown of the de facto relationship. That is a different deadline from the one that applies after a divorce, and people are often given the wrong one by a friend who went through a marriage separation.
- De facto separation. Two years, running from the breakdown of the relationship.
- After a divorce. Twelve months, running from the divorce becoming final.
Only three things stop the clock: filing an application with the court, obtaining consent orders, or signing a binding financial agreement. Agreeing something privately between yourselves does not, however genuine it is. Once the two years has passed you need the court’s permission to apply, which is a separate application in its own right. The Federal Circuit and Family Court of Australia sets out the time limits for financial and property orders.
What legally counts as a de facto relationship
Two people, not married to each other and not related by family, living together on a genuine domestic basis. No single factor decides it. A court weighs how long you were together, whether you shared a home, how financially interdependent you were, whether you owned property together, whether there was a mutual commitment to a shared life, whether you cared for children together, whether the relationship was registered, and how the relationship was regarded publicly.
Sharing a house and splitting bills, on its own, is not enough.
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Can you apply if you were together less than two years?
Often yes. Before a court can make a de facto property order, one of four things needs to be satisfied, and a two year relationship is only the first of them.
- The relationship lasted at least two years, or
- There is a child of the relationship, or
- The relationship was registered under a prescribed state or territory law, or
- One of you made substantial contributions and serious injustice would result if no order were made
There also needs to be a geographical connection to Australia.
The two “two years” are different things. Two years together is a gateway to applying. Two years from separation is a deadline for applying. Merging them is the most expensive misunderstanding in this area.
What a de facto partner is entitled to
There is no fifty fifty starting point. A court identifies and values what each of you owns, owes and holds an interest in, including superannuation. It then assesses what each of you contributed, both financially and as a homemaker or parent, and considers your future circumstances, such as earning capacity and the care of children. It makes an order only if satisfied the result is just and equitable.
What moves the outcome most is the length of the relationship, whether there are children, the gap in earning capacity, and what each of you brought in at the start.
Can you claim against your former partner’s superannuation?
Yes. Superannuation is treated as property in a de facto settlement and can be divided. A split divides the interest itself rather than releasing cash, so the money stays in the superannuation system until a condition of release is met. It is frequently the second largest asset after the family home, and the one most often left out of an informal agreement.
What if your former partner says you were never de facto?
That gets resolved before anything else, because it decides whether there is a claim at all. The question is answered on evidence, not on what either of you now says the relationship was.
The evidence that carries weight
Joint accounts, shared bills and loans, a lease or mortgage in both names, mail addressed to you both, and statements from people who knew you as a couple. Gather it early, because joint accounts get closed and access to old records goes with them.
Recording conversations
In Queensland a person who is part of a private conversation may lawfully record it, but there are real restrictions on who you can then share it with and how it can be used, under the Invasion of Privacy Act 1971. The Office of the Information Commissioner Queensland explains the position. Take advice before you rely on a recording.
Do you have to go to court?
Most de facto property matters resolve without a hearing. Consent orders or a binding financial agreement make an agreement binding without either of you appearing. Court becomes necessary when the other side will not negotiate, will not disclose, or the two year deadline is about to pass.
Where to find us
Call (07) 3172 3777 or email enquiries@qflp.com.au.
We are open Monday to Thursday 7:30am to 5pm and Friday 7:30am to 4pm. Consultations are available in person, by phone or by video.
If you need to bring your children to an appointment, we have a children’s room so you can concentrate on the conversation.
Common questions about de facto separation
Below are the questions people ask us most about de facto separation.
Does the house being in one name mean it is not part of the settlement?
No. Whose name is on the title does not decide who gets what. Contributions include household expenses, renovation and unpaid work on the property, not only mortgage payments.
Does being unmarried affect my rights as a parent?
No. Parenting is decided on what is in the child’s best interests and marital status is not part of that test. Parenting matters have no application deadline while your property claim does, which is how property claims quietly expire.
What does it cost to sort out a de facto property settlement?
It depends on whether you have already agreed and how complex the assets are. A matter resolved by consent orders costs a fraction of a contested application, which is the main reason to get advice before positions harden.
Can I get advice if I cannot pay upfront?
Possibly. External funding providers may cover your approved legal fees so they are paid at the end of your matter rather than now. Ask about fee funding on your first call.
Can you still apply once the two years has passed?
Only with the court’s permission, which is a separate application. It is granted where hardship would otherwise result, and it is never a formality, so do not treat the deadline as soft.
Talk to a family lawyer about your de facto separation. Call (07) 3172 3777 or book a consultation and we will map out your next step.