De Facto Property Rights in Australia

Defining a de facto relationship

Section 4AA of the Family Law Act 1975 defines a de facto relationship as one where two people (including same-sex couples) are not legally married to each other, are not related by family, and — having regard to all the circumstances of their relationship — have a relationship as a couple living together on a genuine domestic basis.

The court considers the following factors under Section 4AA(2) when assessing whether a de facto relationship exists:

• Duration of the relationship
• Nature and extent of common residence
• Whether a sexual relationship exists
• Degree of financial dependence or interdependence
• Ownership, use, and acquisition of property
• Degree of mutual commitment to a shared life
• Care and support of children
• Reputation and public aspects of the relationship

Jurisdictional requirements

Before the Federal Circuit and Family Court can hear a de facto property matter, specific jurisdictional requirements under Section 90SC must be satisfied. Two conditions must both be met.

Geographic requirement

At least one of the parties must have been ordinarily resident in a referring state or territory when the application was made, or when the relationship broke down. All states and territories have referred their powers — South Australia joined in 2010, Western Australia for most matters in 2018.

Relationship threshold (at least one must apply)

• Duration of at least 2 years — the de facto relationship lasted 2 years in total (not necessarily continuous).
• Child of the relationship — there is a child of the de facto relationship.
• Substantial contributions + serious injustice — one party made substantial contributions and failure to make an order would cause serious injustice to that party.
• Registered relationship — the relationship was registered under state or territory law.

The legal framework: Part VIIIAB

De facto property matters are governed by Part VIIIAB of the Family Law Act 1975, which mirrors the provisions for married couples in Part VIII. The court applies the same four-step process: identify and value the asset pool, assess contributions, consider future needs adjustments, and ensure the outcome is just and equitable.

Time limits for applications

Applications for de facto property orders must generally be made within 2 years of the date the de facto relationship ended — a longer window than for married couples, who have 12 months from the date the divorce order becomes final.

The court may grant leave to apply outside the 2-year period if:

• Hardship would be caused to a party to the de facto relationship, or to a child, if leave were not granted; or
• At the end of the 2-year period, the applicant's circumstances were such that they would be unable to support themselves without an income-tested pension or benefit; or
• There were other circumstances warranting an extension of time.

Determining when the relationship ended

The High Court's decision in Fairbairn v Radecki [2022] HCA 18 clarified how courts determine when a de facto relationship ended — a question that directly affects both the 2-year time limit and the assessment of post-separation contributions.

"A de facto relationship ends when the parties cease to live together as a couple on a genuine domestic basis. This is to be determined objectively by reference to all the circumstances that bear upon the character of the parties' relationship."

Key principles from Fairbairn v Radecki:

• The test is objective, not based solely on one party's subjective intention.
• The same factors used to determine whether a relationship exists (Section 4AA(2)) are relevant to determining when it ended.
• Brief separations for work or medical treatment with an intention to resume living together may not end the relationship.
• The end date is important for calculating the 2-year time limit and for assessing post-separation contributions.

Western Australia: special considerations

Western Australia has a unique history regarding de facto property matters that creates transitional complexity for some couples.

From 1 July 2018, Western Australia referred de facto property matters to the federal system. De facto couples in WA can now access the Federal Circuit and Family Court for property settlements. Superannuation splitting for WA de facto couples became available later — from 28 September 2022 — following the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020.

Common questions