When unmarried partners who bought property together separate, the first question is not who gets what. It is which law applies. If the relationship qualifies under the Family Law Act 1975, the Federal Circuit and Family Court can divide the whole asset pool. If it does not, the dispute is usually decided under Victoria’s Property Law Act 1958, which focuses on the jointly owned property itself. The two paths can produce very different results.
Two different approaches
| Family law (FCFCOA) | Co-ownership law (VCAT or County/Supreme Court) |
|---|
| What is divided | All property, debts, superannuation and financial resources of both parties | Usually only the co-owned asset |
| Starting point | Contributions of each party, financial and non-financial | The shares shown on title |
| What else counts | Each party’s future needs, and the economic effect of family violence | Adjustments for payments, improvements, rent and exclusion |
| Who can use it | Only parties to a qualifying de facto relationship | Any co-owner |
| Time limit | Generally 2 years from separation, unless the court allows more | No equivalent separation-based deadline |
What is a de facto relationship?
Under section 4AA of the Family Law Act, a de facto relationship exists where two people who are not married to each other or related by family have a relationship as a couple living together on a genuine domestic basis. The court looks at all the circumstances, including:
- how long the relationship lasted, and whether and how the couple lived together
- their financial arrangements and any financial dependence
- whether they owned or bought property together
- their degree of commitment to a shared life
- how they presented as a couple to family, friends and the public
No single factor decides it. Couples who kept separate homes for part of the relationship can still qualify, and couples who lived together for years may not.
The extra threshold: section 90SB
Even if a de facto relationship existed, the court can only make property orders if one of the conditions in section 90SB is met:
- the relationship, or the total of its periods, lasted at least two years
- there is a child of the relationship
- the applicant made substantial contributions, and refusing orders would cause serious injustice
- the relationship was registered under a State or Territory law
The two-year period counts the time the relationship was de facto, not simply the time the couple were dating. Where the period is short, the case often turns on the contributions and serious injustice test. That test requires evidence, not just an assertion.
Choosing the forum
If a co-ownership application has already been filed, a partner who believes the relationship was de facto may consider starting family law proceedings and asking for the co-ownership case to be adjourned or stayed. Whether that is worthwhile depends on how strong the de facto case is, what else is in the asset pool, the cost and delay, and what each path is likely to produce.
Sometimes the family law path is clearly better. Sometimes it adds cost and risk for little gain, and resolving the co-ownership dispute directly is the sensible course. This is a decision to make early and deliberately, with evidence in hand.
Evidence that helps
- leases, bills and correspondence showing where each of you lived and when
- joint accounts, shared expenses and transfers between you
- photos, social media and messages showing how you presented as a couple
- records of financial and non-financial contributions, including homemaking
How we can help
We practise in both family law and property disputes, so we can assess both paths side by side rather than steering you toward one. We advise on whether the de facto thresholds can be met, what each forum is likely to deliver, and how to act within the time limits.
Related reading
Chua Tan Associates acts for co-owners and separating couples in property and family law disputes in Victoria. To arrange a confidential consultation, please contact our Melbourne office on +61 3 9602 3988 or submit an enquiry. Advice is available in English, Mandarin and Cantonese.
Justin Chua (蔡智勋), lawyer and mediator, Chua Tan Associates, Melbourne. General information only, not legal advice.
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