In Australia, de facto partners who are not married do not, and cannot, divorce when they split up, because divorce only applies to a legal marriage. But after separating, de facto partners can deal with property settlement and spousal maintenance under Part VIIIAB of the Family Law Act 1975 (Cth), applying much the same principles as for married spouses. Parenting arrangements follow the same rules whether or not the parents were married. The key points are, first, to confirm that the relationship is a de facto relationship in law and, second, to make any property or maintenance application within 2 years of separation.
Legal framework
Is it a de facto relationship?
Under section 4AA, a de facto relationship is one where two people who are not married to each other and are not related live together as a couple on a genuine domestic basis. The court looks at all the circumstances, including how long the relationship lasted, the nature and extent of living together, whether there is a sexual relationship, the degree of financial dependence or support, ownership, use and acquisition of property, the commitment to a shared life, whether the relationship was registered under state law, care of children, and how the relationship appeared to others. No single factor is decisive.
When the court has jurisdiction
Under section 90SB, the court can only make property or maintenance orders for de facto partners if one of these applies:
- The relationship lasted at least 2 years in total;
- The couple have a child together;
- One partner made substantial contributions and it would be seriously unjust not to make an order; or
- The relationship was registered under state or territory law (for example, under the Relationships Act 2008 (Vic)).
The application must also meet the requirement for a geographical connection with the relevant Australian state or territory.
Time limits
Property and maintenance applications generally must be made within 2 years of the date of separation. After that, you must ask the court for permission, and the court will consider factors such as whether refusing would cause hardship. There is no guarantee of the outcome.
Property settlement and spousal maintenance
Property settlement for de facto partners is dealt with under section 90SM, following the same steps as for married spouses: identify the property pool, assess each party's financial and non-financial contributions, consider each party's current and future circumstances, and finally decide whether the outcome is just and equitable. Amendments in force from 10 June 2025 put these steps into the legislation and expressly deal with the economic effects of family violence and companion animals. Spousal maintenance is dealt with under section 90SF, and is only ordered where one party cannot reasonably support themselves and the other can afford to pay.
The process in practice
- Confirm the nature of the relationship and the separation date: gather evidence of the de facto relationship and when it began and ended.
- Exchange financial information: both parties must make full and frank disclosure.
- Negotiation or mediation: Most cases settle through negotiation between lawyers or Family dispute resolution.
- Formalising the agreement: Formalise the outcome in consent orders or a Part VIIIAB Binding Financial Agreement to make the outcome final.
- Court application: if you cannot reach agreement, apply to the Federal Circuit and Family Court of Australia within the time limit.
Common misconceptions
- The other party denies there was a de facto relationship: you will need to prove it with evidence such as a joint lease or mortgage, joint accounts, photos together, statements from family and friends, and how you described the relationship to government agencies.
- Whether the relationship lasted 2 years: in on-again, off-again relationships, how the total length is calculated can be disputed.
- De facto partner visa evidence: relationship evidence lodged for immigration purposes may be used as evidence of a de facto relationship in a property case, and the reverse.
- Wills and inheritance: In Victoria, a de facto partner may be treated as a spouse for inheritance purposes, so update your Will and superannuation beneficiary nominations promptly after separating.
Information to prepare
- Evidence of living together, such as leases, utility bills and mail;
- Relationship registration certificate (if any);
- Financial records and joint account details;
- Details of income, assets, liabilities and superannuation;
- Details of any children.
How we can help
We can assess whether your relationship is a de facto relationship and meets the jurisdictional requirements, confirm your time limit, help gather evidence, negotiate or mediate, and draft consent orders or a Binding Financial Agreement. If court proceedings are needed, we can appear for you in the Federal Circuit and Family Court of Australia. We work in Mandarin, Cantonese and English. For more information, see our family law services page, or get in touch through our Contact us page.
FAQs
Do de facto partners need a divorce when they split up?
No, and they cannot get one. Divorce only applies to a legal marriage. After separating, de facto partners who are not married can deal with property settlement, spousal maintenance and related issues under the Family Law Act 1975, provided the relationship qualifies as a de facto relationship and the court's jurisdictional requirements are met.
How long do we need to have lived together to divide property in Australia?
Generally, the relationship must have lasted at least 2 years in total. If it was shorter, the court can still make orders if you have a child together, one partner made substantial contributions and it would be seriously unjust not to make an order, or the relationship was registered under state or territory law (for example, under the Relationships Act 2008 (Vic)). There is also a geographical connection requirement.
How long after separating do de facto partners have to apply for property settlement?
Property and maintenance applications generally must be made within 2 years of the date of separation. After that, you must ask the court for permission, and the court will consider factors such as whether refusing would cause hardship. The outcome is not guaranteed, so act early.
What if my ex denies we were in a de facto relationship?
You will need evidence of the de facto relationship, such as a joint lease or mortgage, joint accounts, photos together, statements from family and friends, and how you described the relationship to government agencies. Relationship evidence lodged for immigration purposes may also be used as evidence of a de facto relationship in a property case.
Chua Tan Associates has practised in Melbourne since 1990, acting for clients in Australia and overseas in English, Mandarin and Cantonese. For a confidential consultation, call +61 3 9602 3988 or email chuatan@tpg.com.au. This article is general information only and is not legal advice.
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