What a De Facto Partner Is Entitled To in a Property Settlement

If you were living with someone and it has ended, you have the same property settlement rights as a married spouse. That comes from the Family Law Act 1975 (Cth), and it applies whether or not either of you ever wanted the law involved. There is no fixed share. There is no automatic 50/50.

What actually happens is this. The court works out the whole asset pool, superannuation included, weighs what each of you contributed financially and non-financially, then adjusts for what each of you will need going forward. And you have two years from separation to file. That deadline does more damage than anything else on this page, so start there if you are reading in a hurry.

Possibly, yes, your partner can have a claim over your house. Even if it is in your name alone. Even if you paid every cent of the deposit.

Legal ownership decides who holds title. It does not decide who is entitled to what once a family law property settlement begins. Section 90SM of the Family Law Act gives the court power to alter property interests between de facto partners, and that power extends to ordering the transfer or sale of a solely owned home (Family Law Act 1975 (Cth) s 90SM). The title deed is evidence. It is not a shield.

What shifts the answer is the pattern of contribution and need across the whole relationship. Someone who never appeared on the title but paid the mortgage for six years has contributed. So has the person who tiled the bathroom themselves, and the person who stayed home with the children while the other one's career kept moving. Those count.

Take a pattern we see constantly in Brisbane. One partner buys a Camp Hill house before the relationship starts. It is worth $650,000 with a $400,000 mortgage. They live there together for eight years. The other partner covers the groceries, the utilities and the rates, spends two years out of work with a baby, and project-manages the kitchen renovation from start to finish. By separation the house is worth $1.1 million and the loan is down to $180,000. That initial contribution by the title holder is significant and the court recognises it properly. But it is one factor weighed against eight years of joint effort and a very large jump in equity. It is not a trump card. If this sounds like your situation, our page on separating from a de facto partner when the house is in one name works the scenario through in more detail.

The Federal Circuit and Family Court of Australia runs the same four-step approach for de facto couples that it runs for married ones.

1. Identify and value the net asset pool. Everything, in either name or jointly: real estate, savings, shares, vehicles, business interests, superannuation, inheritances already received, and the debts. Our page on what assets are included in property settlement sets out the full picture.
2. Assess contributions. Wages, deposits and gifts from family sit on the financial side. Renovations, unpaid work in a partner's business, homemaking and parenting sit on the non-financial side. The Act expressly brings contributions made as a homemaker or parent into that assessment.
3. Consider future needs. Age, health, earning capacity, care of the children of the relationship, and financial resources. This step commonly produces an adjustment in favour of the lower earning partner.
4. Check the result is just and equitable. The court stands back from the arithmetic and asks whether the division it has arrived at is actually fair in the circumstances.

Step two looks backwards at what each of you put in. Step three looks forwards at where each of you will be standing. That distinction is the one people miss, and it explains a lot of outcomes that look strange from the outside. Two people with near-identical contributions can walk away with very different percentages if one of them is caring for a five year old for the next decade on a part-time wage. The four-step process explained covers the mechanics.

Nothing else on this page matters until that finding is made. It is the gate, and everything else sits behind it.

The Family Law Act asks whether the two of you lived together as a couple on a genuine domestic basis. It then lists the factors that go to that question: how long the relationship lasted, whether there was a sexual relationship, financial interdependence, the ownership and use of property, the degree of mutual commitment to a shared life, the care of children, and whether the relationship was publicly regarded as one (Family Law Act 1975 (Cth) s 4AA).

No single factor decides it. Couples who kept entirely separate bank accounts have been found to be de facto. Couples who shared a mortgage have been found not to be.

Where the other party denies the relationship outright, contemporaneous evidence beats recollection every time. Joint leases and utility accounts. Medicare and private health records. Travel bookings, dated photographs, statements from friends and family. The documents made at the time, before either of you had any reason to think about a court, are the ones that carry weight. Our guides on what legally counts as a de facto relationship and how to prove a de facto relationship when the other party denies it go through the evidence in practical terms.

There is a second gate as well. Before a court can make property settlement orders you generally need one of the following: the relationship lasted at least two years, there is a child of the relationship, or one partner made substantial contributions and would suffer serious injustice if no order were made. That third gateway is what rescues a lot of short de facto relationships, particularly where one partner poured their savings into the other's home. There is also a geographic connection requirement to a participating state or territory.

This is where most people come unstuck. A de facto partner gets two years from the date the relationship ended to apply for property settlement orders or maintenance. Married couples get twelve months from the date a divorce order takes effect, which is a different rule with a different starting point.

Here is the awkward part. A de facto separation produces no court document. Nothing stamps the date. So the clock starts running on a day that is frequently in dispute, and often nobody thinks to pin it down until it is too late to matter.

You can apply out of time, but only with the court's permission, and permission is not handed out as a formality. You would need to show hardship to yourself or to a child if leave were refused. Do not plan around it. If your separation date is genuinely arguable, say because the two of you kept living under one roof in Maroochydore while the lease was sorted out, get advice early rather than late. The property settlement time limit page and the time limit calculator will help you fix your date.

Yes, a former de facto partner can seek financial support. The test is need on one side and capacity on the other: they cannot adequately support themselves, and the other partner can afford to help. That gets assessed against factors including age, health, care of children, and income earning capacity.

Keep it separate in your head from the property division, and separate again from child support, which Services Australia administers by formula. Maintenance is most often sought where one partner left the workforce, is retraining, or has a health condition that limits what they can do. If the situation is urgent, an interim spousal maintenance order can be sought before the main settlement is finalised. The same two year deadline applies here too.

It counts. Super can be split between de facto partners by court order or by agreement, and for most couples it is one of the larger numbers in the pool.

What it does not do is come out as cash. A split moves an amount across into the other partner's fund, where it stays preserved until a condition of release is met. Nobody is buying a car with it.

One point worth clearing up, because it still circulates. Some older articles online say de facto super cannot be split, on the basis that Western Australia came into the Commonwealth framework later than everyone else. For a Queensland de facto couple the Commonwealth superannuation-splitting regime applies, and that historical distinction does not stop a Queensland split. Our pages on superannuation splitting for de facto couples in Queensland and the tax implications of a super split go further.

Two ways to make it binding: consent orders, or a binding financial agreement.

Consent orders are your agreement filed with the court and approved by it, and the court must be satisfied the terms are just and equitable before it approves anything. A binding financial agreement never goes before the court at all. It is a private contract, and each party has to receive independent legal advice for it to bind.

Consent orders are commonly used after separation, because the court's approval is what gives you a clear, enforceable outcome. There is a practical benefit too. A qualifying transfer made under a valid court order or financial agreement may be exempt from Queensland transfer duty, provided the document and the transaction meet the Queensland Revenue Office requirements. A financial agreement suits a different set of couples: those who want terms a court might not approve, or who are documenting arrangements before or during a relationship. The comparison of financial agreements and consent orders sets out the trade-offs.

What does not work is the handshake. A text message, a verbal understanding, an informal split of the joint account. None of it binds either of you, and both of you stay exposed for the full two years.

The main problem is belief. People assume the law does not reach them, right up until the moment it does. Couples who deliberately never married, specifically so their finances would stay their own, are regularly surprised to learn that a claim over the family home, the superannuation and even an inherited property is available to their partner the moment things end.

The other difficulties are evidentiary, and they are real. A married couple has a certificate. A de facto couple has to prove two separate things: that the relationship existed at all, and when it finished. Where there are children, the parenting and financial issues run into each other and the whole thing takes longer to resolve. Our page on de facto separation when you have children together deals with that.

Then there are the self-inflicted ones. Emptying the joint account and assuming that settles it. Moving assets across to a family member. Letting the deadline slide past while waiting for the other party to start cooperating. That last one is the most common and the least recoverable. If your ex-partner is stalling, there are strategies for forcing progress, including mediation and, when it comes to it, filing.

Does a de facto partner automatically get 50 percent? No. There is no presumption of equal division, for de facto or married couples. The percentage falls out of the assessment of contributions and future needs, and outcomes across cases range widely.

Does it matter who left the relationship? No. Australian family law is a no fault system for property division. Who ended it, and why, is not a factor in how the pool gets divided.

Can I claim if we never lived together full time? Possibly. Living under one roof is one of the section 4AA factors, not a requirement in its own right. Couples who kept two homes have been found to be in a de facto relationship where the other indicators of a shared life were there.

Does an inheritance form part of the pool? Usually yes, it goes into the asset pool. The timing and what was done with it affect the weight it gets. An inheritance received a year before separation is treated very differently from one received fifteen years in and spent on the family home.

What if we were both in other relationships at the time? The Act allows a de facto relationship to exist even where one person is legally married to, or in another de facto relationship with, someone else.

Do I need a lawyer for a de facto property settlement? For a binding financial agreement, yes. Independent legal advice is a statutory requirement for both parties. For consent orders it is not compulsory, but it is strongly advisable, because an order the court has approved is very difficult to change afterwards.

We advise separating couples from our offices at Kelvin Grove in Brisbane and Birtinya on the Sunshine Coast, and we work with de facto clients across Ashgrove, Bardon, Red Hill, Cannon Hill, Camp Hill, Maroochydore and the wider region. Our Legal + Life Package brings the legal advice together with finance, wellness and life planning support, so the settlement fits the life you are actually rebuilding.

If you have separated from a de facto partner, the two year clock is already running. Call (07) 3172 3777, email enquiries@qflp.com.au, or book your consultation to work out what you are entitled to and what needs to happen first.