De Facto Lawyers

What counts as a de facto relationship

You do not have to call yourselves de facto for the law to treat you that way. The Family Law Act asks whether you were a couple living together on a genuine domestic basis, and it looks at the whole picture rather than any single fact.

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The things a court weighs include how long you were together, whether you lived in the same home and how completely, whether there was a sexual relationship, how financially entangled you were, how you owned and used property, the degree of mutual commitment to a shared life, whether the relationship was registered, the care and support of any children, and how the relationship was regarded by the people around you.

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No single factor decides it. Couples who kept separate bank accounts have been found to be de facto. Couples who lived together for years have been found not to be. This is one of the most heavily contested threshold questions in family law, and it is worth getting advice early if the other side disputes that the relationship existed at all.

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Two things surprise people. You can be in a de facto relationship while still legally married to someone else. And it is possible to be in more than one de facto relationship at the same time.

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Your rights are substantially the same as a married couple's

Since 2009, separating de facto couples in Victoria have had access to the same property and maintenance regime under the Family Law Act as married couples, and the same applies to same-sex couples. The court identifies the asset pool, weighs contributions and future needs, and arrives at a division that is just and equitable, exactly as it would after a marriage.

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The reforms that commenced on 10 June 2025 apply to de facto property matters too. That includes the express requirement to consider the economic effect of family violence, the codified duty of financial disclosure, and the provisions dealing with companion animals.

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Superannuation can be split between de facto partners in the same way as between spouses. Maintenance is also available, and for de facto couples it is called de facto partner maintenance rather than spousal maintenance, though the test is the same: one person cannot meet their reasonable expenses and the other has the capacity to pay.

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The gateway: when you can bring a property claim

Unlike a marriage, a de facto relationship does not automatically give you the right to apply. You need to satisfy at least one of four gateways.

1. The relationship lasted at least two years in total. This does not have to be one continuous block, and periods can be added together where the relationship resumed.

2. There is a child of the relationship.

3. You made substantial contributions and it would cause serious injustice if no order were made. This is the gateway that saves shorter relationships where one person put in significant money or work.

4. The relationship was registered under Victorian law.

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The two-year time limit that catches people out

You have two years from the date the relationship broke down to apply to the court for a property settlement or maintenance. That is a shorter window than married couples get, and it runs from separation rather than from any formal step, so there is nothing to remind you the clock is running.

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After two years you need the court's permission to apply out of time. Permission is not automatic and an out of time application may not succeed. If you are approaching the deadline and negotiations are still going, we can protect your position rather than letting the date pass.

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Protecting yourself before or during a relationship

De facto couples can enter a binding financial agreement before moving in together, during the relationship, or after separation. It sets out how property and maintenance will be dealt with and, if properly made, keeps the court out of it.

 

Both people must get independent legal advice for the agreement to be binding, and the drafting matters: agreements are set aside every year for defects that were avoidable. These are worth considering where one person is bringing significantly more into the relationship, where there are children from an earlier relationship, or where a business or inheritance needs protecting.

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Frequently asked questions

What counts as a de facto relationship in Australia?

A couple living together on a genuine domestic basis who are not married to each other and not related by family. The court weighs the length of the relationship, whether you lived together, financial interdependence, property, mutual commitment, whether the relationship was registered, children, and how the relationship was publicly regarded. No single factor is decisive.

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Do de facto couples have the same property rights as married couples?

Substantially, yes. Since 2009 separating de facto couples in Victoria have had access to the same property and maintenance regime under the Family Law Act as married couples, including superannuation splitting. The main differences are the gateway requirements and a shorter time limit.

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Do we have to have been together for two years?

Not always. Two years is one of four gateways. You can also apply if there is a child of the relationship, if you made substantial contributions and it would be a serious injustice for no order to be made, or if the relationship was registered.

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How long do I have to make a claim after we separate?

Two years from the date the relationship broke down. After that you need the court's permission to apply out of time, which is not automatic and may not be granted. Get advice well before the two years is up, not after.

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Can I claim my de facto partner's superannuation?

Superannuation is treated as property and can be split between de facto partners by court order or by a superannuation agreement, in the same way as for married couples. It generally stays preserved in the superannuation system until a condition of release is met.

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What if we kept our finances completely separate?

Separate finances are a relevant factor but they are not decisive, either on whether the relationship was de facto or on how property is divided. Couples with entirely separate accounts have been found to be in de facto relationships, and non-financial and homemaker contributions still count.

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Can I protect my assets before we move in together?

Yes. A binding financial agreement made before or during the relationship can set out how property and maintenance will be dealt with if you separate. Both of you must receive independent legal advice for it to be binding, and the drafting needs to be done properly, because defective agreements are set aside.

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Talk to a Melbourne de facto lawyer

If your relationship has ended, or you want to protect your position before it begins, book a free 30-minute phone assessment, call 1800 976 214, or see us in the Melbourne CBD, on St Kilda Road, in Dandenong or in Pakenham.