Short De Facto Relationships and the Two Year Cohabitation Rule

Yes, you can still make a property claim after a de facto relationship shorter than two years, but only if an exception applies. Under the Family Law Act 1975 (Cth), a court can make property or maintenance orders for a short de facto relationship if there is a child of the relationship, if the relationship was registered under a prescribed law of a state or territory, or if one party made substantial contributions and refusing an order would cause serious injustice.

• The "two year rule" is not a test of whether a de facto relationship existed. It is one of four gateways to the court's power to make property orders.
• A child of the relationship or a registered relationship removes the two year requirement entirely.
• The substantial contributions and serious injustice gateway is the hardest to satisfy and is argued case by case.
• The two year total can be made up of separate periods of cohabitation, not one unbroken block.
• The deadline to apply is two years from the date the relationship ends, and it is separate from the deadline that applies after a divorce order.

The two year cohabitation rule is the general requirement in section 90SB of the Family Law Act 1975 (Cth) that a de facto relationship must have lasted at least 2 years before a court can make property settlement or maintenance orders (Family Law Act 1975 (Cth) s 90SB). It is a jurisdictional threshold, not a definition.

That distinction matters more than most people realise. Section 4AA defines when a de facto relationship exists: two parties, not legally married to each other and not related by family, who are a couple living together on a genuine domestic basis. A relationship of eight months can absolutely be a genuine de facto relationship under section 4AA. What the eight months does not do, on its own, is give the Federal Circuit and Family Court of Australia the power to divide property. Two separate questions, two separate answers, and people conflate them constantly.

So the honest framing for a short relationship is this: the argument is rarely about whether you were de facto. It is about which gateway gets you through the door.

You can, if you fit one of the three exceptions in section 90SB. The court's power to make property orders exists where any one of the following applies, and you only need one.

The child gateway is the one that resolves most short relationship disputes quietly. If a child was born to the couple, the length of the relationship stops being the issue. That interacts with parenting arrangements too, and the two often run together in practice. This gateway applies the same way whether there is one child or several children of the relationship. Our page on de facto separation when you have children together covers that overlap.

Registration is worth checking even when you think it does not apply. Queensland allows couples to register a civil partnership, and a registered relationship satisfies section 90SB regardless of how long you lived together. People who registered years ago and forgot about it sometimes discover they had a gateway all along.

This gateway requires two things together: that one party made substantial contributions of the kind listed in the property provisions, and that a failure to make an order would result in serious injustice to that person. Substantial contributions alone are not enough. Modest contributions plus real hardship are not enough either. Both limbs must be met.

Contributions here carry the same meaning they do in any property settlement: financial contributions, non-financial contributions to acquiring or improving property, and contributions as a homemaker or parent. What lifts them to "substantial" in a short relationship is usually scale relative to the asset pool, or a contribution that changed the character of an asset.

Concrete example of the shape these arguments take. A couple lives together on the Sunshine Coast for sixteen months. The house at Birtinya is in one name. The other person sells a unit they owned outright, puts a large slice of the proceeds into paying down the mortgage on that house, and spends most weekends renovating it. When the relationship ends they walk away with a depleted savings account and no interest in a property they materially improved. That is the fact pattern the serious injustice limb exists to address: a real, traceable, substantial contribution and a genuinely unjust outcome if the court cannot act.

Compare that with a fifteen month relationship where both people worked, split the rent, kept separate accounts and each kept their own super. There are contributions, but nothing substantial, and no serious injustice in leaving the parties where they stand. That case does not get through.

The reason this gateway is fought so hard is that it is evaluative. There is no formula, no percentage, no threshold dollar figure. It turns on the specific facts, so records showing what you contributed and when can be central to the court's assessment. If the home is in your former partner's name, the related issues are set out in separating from a de facto partner when the house is in one name.

No. The Family Law Act allows periods of cohabitation to be added together when working out whether the relationship lasted at least 2 years (Family Law Act 1975 (Cth) s 90SB(1)(a) and s 4AA(5)). A couple who lived together for fourteen months, separated for a period, then resumed and lived together for another twelve months can reach the threshold on the combined total.

It is easy to count only the final period of living together and conclude that the relationship falls short. Before ruling out a claim, list each period when you lived together as a couple and record the relevant dates.

Two practical cautions. First, a brief reconciliation does not restart or reset anything; it is the aggregate cohabitation that counts. Second, the gaps themselves become contested, because your former partner has an obvious incentive to characterise a period as "living together for convenience" rather than as a couple living together on a genuine domestic basis.

Whether you have a de facto relationship with someone comes down to the whole picture of circumstances in section 4AA, which include the duration of the relationship, the nature and extent of common residence, whether a sexual relationship existed, the degree of financial dependence or interdependence and any arrangements for financial support, ownership and use of property, the degree of mutual commitment to a shared life, whether the relationship was registered, the care and support of children, and the reputation and public aspects of the relationship (Family Law Act 1975 (Cth) s 4AA).

No single factor decides it. The court will look at the whole picture and weigh what it finds. Section 4AA is explicit that no particular finding is necessary, which is why you can be in a de facto relationship without a sexual relationship, and why you can share a bed for two years without being de facto.

Short relationships get scrutinised harder on this point precisely because there is less accumulated evidence. Twelve months produces a thinner paper trail than seven years. Where the other party denies the relationship existed, the evidence question becomes the whole case: how to prove a de facto relationship when the other party denies it goes through what actually persuades a court.

Yes. Living together as a couple on a genuine domestic basis does not require a single shared address every night of the week. Two people can live together as a couple only part of the week, or keep separate homes, and still be de facto partners under section 4AA. Fly in fly out workers, people who keep a second residence for work, and couples who maintain separate homes for children from earlier relationships have all been found to be in de facto relationships.

For short relationships this cuts both ways. It opens the door to a claim where the couple never formally moved in together. It also weakens the duration argument, because a court assessing "common residence" over a fourteen month period with two addresses has more to be persuaded about, and less to be persuaded with.

No, and the "half" framing is wrong even for long relationships. There is no presumption of equal division in Australian family law. The court applies the same four step property settlement process it uses for married couples: identify and value the asset pool, assess contributions, consider future needs, and check the outcome is just and equitable.

In a short de facto relationship the contributions step usually dominates, so outcomes commonly sit well away from an even split. For how that plays out in practice, see de facto relationship break up entitlements and what assets are included in property settlement.

You must apply to the court within 2 years of the date your de facto relationship ended (Family Law Act 1975 (Cth) s 44(5)). This is a different limitation period from the one for married couples, who have twelve months from the date a divorce order takes effect, and confusing the two is a common and expensive error.

For short relationships this deadline is easy to miss, because there is often no divorce paperwork, no formal end point and no shared mortgage to prompt attention. Complications such as a disputed separation date or the need for the court's leave to apply late are common in short relationships and are covered in full on our page about the two year deadline to apply after de facto separation in Queensland.

The main exposure is that de facto status arrives without paperwork. Nobody signs anything, and one day the section 4AA circumstances are simply satisfied. If you own a property, hold significant superannuation, run a business, or are about to receive an inheritance, that exposure is real even in a relationship that never reaches two years, because the child, registration and serious injustice gateways do not care about duration. That is how short relationships create legal problems for people who assumed nothing was at stake.

Practical steps that work:

1. Keep contributions traceable. If money moves between you, record what it was for. A written acknowledgement of a loan versus a gift resolves arguments that otherwise take a hearing to sort out.
2. Be deliberate about title and mortgage payments. Paying down someone else's mortgage builds the exact contribution argument that the serious injustice gateway is designed to recognise.
3. Consider a binding financial agreement. De facto couples can enter one before, during or after the relationship. It has strict formal requirements, including that each party receives independent legal advice, and it can be set aside if those requirements are not met. The comparison in binding financial agreements and consent orders explains where each fits.
4. Do not rely on separate bank accounts alone. Financial separation is one of nine circumstances the court considers, not a shield.

Superannuation is the asset people forget. It is treated as property for de facto couples and can be split, and the tax treatment is its own topic: superannuation splitting for de facto couples in Queensland.

One jurisdictional note. The Commonwealth de facto property regime covers Queensland and the other states that referred power to the Commonwealth. Western Australia sits outside parts of that scheme, so advice written for a WA reader will not always match the position here.

Does a short de facto relationship need to be registered to make a claim? No. Registration is one of four alternative gateways, not a requirement. A relationship of at least 2 years, a child of the relationship, or substantial contributions plus serious injustice each work independently.

Does having a child together mean property is divided equally? No. A child of the relationship gives the court power to make orders. It does not determine what those orders are. The division still runs through the four step process, where care of a child is relevant to the future needs step.

What if we lived together for 23 months? Then you need one of the other gateways, or you need to establish that earlier periods of cohabitation take the total past 2 years. This is exactly the situation where mapping every period you lived together matters, and where getting legal advice early is worth it.

Can I get spousal maintenance from a short de facto relationship? The same section 90SB gateways apply to de facto maintenance as to property orders. If a gateway is satisfied, a maintenance application is possible where one party cannot adequately support themselves and the other has capacity to pay. Urgent situations are covered in interim spousal maintenance.

Can we sort this out without going to court? Yes, and most people do. If you both agree on the division, you can formalise it through consent orders in Queensland or a binding financial agreement. Where a gateway is arguable rather than clear, family law mediation often resolves it faster and for less than a contested hearing, and it still helps to have a family lawyer review any agreement before you sign.

Short de facto matters turn on facts that get harder to prove as time passes: bank records, lease dates, messages about moving in, receipts for the renovation you paid for. If your relationship has ended and you are unsure whether a gateway applies to you, seek legal advice while that evidence is still at hand.

If you’re unsure where you stand after a short de facto relationship, contact Queensland Family Law Practice to discuss your circumstances.

Call (07) 3172 3777, email enquiries@qflp.com.au, or book your consultation. You can also read more about how we handle de facto matters.