What is a de facto relationship?
In Australia, you do not need to be married to have legal rights as a couple. Under the Family Law Act 1975, a de facto relationship generally involves two people who are not married to each other, are not related by family and, having regard to all the circumstances, live together as a couple on a genuine domestic basis.
The definition includes both opposite-sex and same-sex couples. The question is not whether you have a marriage certificate, joint bank account or registered relationship: it is the actual nature of the relationship. See our guides to relationships in Australia and marriage and legal rights.
Key distinction: Being in a de facto relationship is not the same legal question as qualifying to ask the Court for a financial order after separation. The latter usually requires an additional gateway test.
How is a de facto relationship established?
Courts consider the relationship as a whole. Relevant circumstances may include:
- How long the relationship lasted and the extent of any shared residence.
- Whether there was a sexual relationship and the nature of the partners’ commitment to a shared life.
- Financial arrangements, financial dependence or interdependence, and ownership or use of property.
- Whether the partners care for and support children.
- Any registration of the relationship and how the couple is recognised publicly.
No single factor is decisive. Partners do not necessarily need to live together every night, and separate bank accounts do not automatically prevent a relationship being recognised. The evidence and overall circumstances matter.
Example: Emily and Jack
Emily and Jack have lived together for three years, share a rented home, use joint bank accounts and recently had a baby. They have never married. Their circumstances strongly suggest a de facto relationship.
If they separate, they may be eligible to seek orders about finances and property, subject to the statutory criteria and the applicable jurisdiction. Their child's care arrangements are assessed under parenting law, rather than automatically determined by their relationship status. See our children and parenting resources.
What legal rights can de facto partners have?
Eligible former de facto partners may seek financial and property orders under the family-law system. Depending on the circumstances, issues can include:
Property settlement
The Court can assess assets, liabilities, contributions and current or future circumstances. A 50/50 division is not automatic.
Partner maintenance
A person who cannot adequately support themselves may seek maintenance where the other partner has capacity to pay; this is not automatic.
Superannuation
Superannuation can be addressed through eligible settlement orders or agreements, subject to the legal requirements.
Parenting arrangements
Parenting decisions focus on children’s best interests, not whether their parents married.
Read about property settlement after separation and parenting orders in Australia.
Do you have to be together for two years?
Not to be regarded as de facto in every legal context. But for a federal family-law financial order, the usual gateway is a relationship lasting at least two years, or at least one of the following alternative criteria:
- There is a child of the de facto relationship.
- The relationship was registered under a prescribed state or territory law.
- One partner made substantial contributions and refusing an order would result in serious injustice.
You must also satisfy the relevant jurisdictional and geographical requirements. The rules for Western Australia can differ, so seek state-specific advice where appropriate.
Example: A couple separated after 18 months may still satisfy a gateway if they have a child of their relationship. Another couple without a child or registration would need to consider whether the substantial-contributions and serious-injustice test applies.
What is the deadline after separation?
For most applications for de facto financial or property orders, you generally must apply within two years after the relationship breaks down. That is a filing deadline after separation, distinct from the two-year relationship-duration test.
Outside that period, a party usually needs the Court’s permission to apply, and permission is not guaranteed. Identify and record the separation date carefully. For more information, see the family-law process.
How is property divided after a de facto separation?
Property is not simply split according to whose name appears on a title or who earned the highest salary. The family-law framework considers the assets and debts, financial and non-financial contributions, care of children, and the parties’ present and future circumstances, with any orders required to be just and equitable.
Changes to the family-law property framework effective 10 June 2025 also expressly address relevant economic effects of family violence and financial disclosure obligations. Couples may negotiate agreements outside court, but should understand their disclosure duties and obtain advice before signing a settlement.
Our property settlement guide explains the process in more detail.
Can a de facto partner receive maintenance?
Potentially. De facto partner maintenance may be available when one former partner cannot adequately support themselves and the other has the financial capacity to contribute, having regard to the relevant law and circumstances. It is separate from child support and is not a guaranteed payment following every separation.
The two-year post-separation application period generally matters for de facto partner maintenance claims as well.
Can de facto couples make financial agreements?
Yes. Couples may enter into a financial agreement before, during or after a de facto relationship, subject to the law. Such agreements may address how property, superannuation and certain financial support issues will be handled if the relationship ends.
To be binding, statutory requirements must be satisfied, including that each person receives the required independent legal advice before signing. Agreements may also be challenged or set aside in particular circumstances. They should not be treated as a simple DIY form.
How do you protect your position?
- Keep evidence of the relationship. Records of shared residence, financial arrangements, commitments, children and important dates may be relevant.
- Document property and liabilities. Retain bank, mortgage, superannuation and investment statements, including documents showing contributions.
- Record the separation date. The two-year period for most de facto financial applications starts when the relationship breaks down.
- Consider settlement options. Legal advice, negotiation and dispute resolution may help resolve financial matters without litigation.
- Get advice early. Particularly where there are children, complex assets, family violence, or uncertainty about the eligibility gateway or jurisdiction.
Frequently asked questions
Can you be de facto without living together all the time?
Possibly. The degree of shared residence is one factor among many; no single fact decides whether a relationship is de facto.
Are de facto couples automatically entitled to half of everything?
No. There is no automatic 50/50 entitlement. Outcomes depend on the statutory framework and individual circumstances.
Does having a child automatically mean you receive property?
No. Having a child may satisfy one financial-jurisdiction gateway, but does not automatically decide the outcome of a property or maintenance claim.
Is child support the same as de facto partner maintenance?
No. Child support concerns financial support for children; partner maintenance concerns support for a former partner where the legal criteria are met.