Updated 27 October 2026
CM Law’s Ultimate 50 Things You Need to Know About Property Settlement During Divorce #40: What are the rights of de facto couples in property settlements?
More property settlement questions
What rights do de facto partners have
Eligible de facto partners in NSW can seek property settlement and maintenance orders under the Family Law Act 1975 after their relationship ends. The financial assessment broadly follows the same principles as for married couples, but de facto applicants must satisfy additional eligibility requirements.
There is no automatic right to half the assets after two years together. Equally, property held in one partner’s name is not necessarily beyond a claim. The relationship, its duration, each person’s contributions and their circumstances all require examination.
Establish whether the relationship was de facto
Section 4AA of the Family Law Act asks whether two people, who are not married to each other or related by family, were living together as a couple on a genuine domestic basis. The definition covers same-sex and different-sex couples.
The court considers the whole relationship, including its length, shared residence, financial arrangements, property ownership, commitment to a shared life, care of children and how the couple presented themselves publicly. Registration is also relevant. No single factor determines every case.
Prepare a timeline supported by leases, bank statements, bills, messages and other relevant records. Separate accounts do not automatically defeat a claim, and a shared address alone does not establish one. Keep documents you can lawfully access and ask your lawyer how to obtain anything missing.
Check the requirements for a property claim
Under section 90SB, at least one gateway must be satisfied: the relationship lasted at least two years, including aggregated periods; there is a child of the relationship; it is or was registered under a prescribed law; or the applicant made substantial qualifying contributions and refusing an order would cause serious injustice to that applicant.
The contributions gateway includes financial, non-financial and homemaker or parenting contributions. A shorter relationship therefore needs careful assessment. The two-year gateway does not define when a relationship first becomes de facto.
A geographical connection is also required. For example, both partners being ordinarily resident in NSW when the relationship broke down can satisfy that requirement. Other routes depend on residence when proceedings begin and where the relationship or substantial contributions occurred. Obtain individual advice about interstate or overseas histories.
Protect the deadline after separation
The usual deadline is to apply for property orders within two years after the relationship ends. This is separate from the relationship-length gateway. Negotiating or attending mediation does not, by itself, stop the filing clock.
If the period has expired, section 44 allows possible routes involving both parties’ consent or the court’s permission. Permission is not automatic; hardship to a party or child is relevant to an application for leave. Ask a lawyer about the applicable requirements immediately.
Record when the relationship ended and any disagreement about that date. Remaining under one roof does not necessarily mean the relationship continued. Conversely, living apart for work, illness or care does not necessarily establish separation.
A real case about when a relationship ends
In Fairbairn v Radecki [2022] HCA 18, the High Court considered whether a de facto relationship had ended after one partner developed dementia and moved into aged care. The couple had previously agreed to keep their assets separate.
The Court explained that the move into care and loss of decision-making capacity did not, by themselves, end the relationship. It nevertheless found a breakdown, considering all the circumstances, including the other partner’s conduct concerning her assets and care.
The decision concerned whether property settlement powers could be exercised; it did not award either person a particular percentage of the assets. It shows why evidence of the relationship’s actual operation matters when its end date is disputed.
Identify the assets and debts
Start with a complete picture of both parties’ finances, including real estate, savings, investments, vehicles, business or trust interests, superannuation and liabilities. Include property held individually as well as jointly. Assets brought into the relationship, gifts and inheritances need consideration rather than automatic exclusion.
Obtain current balances and appropriate valuations. The court examines existing legal and equitable interests and liabilities before deciding whether an alteration would be just and equitable. A deposit is an important contribution, but does not automatically produce a dollar-for-dollar repayment or a fixed percentage.
Superannuation can be split under appropriate arrangements, but usually remains subject to preservation rules. A split generally does not turn it into cash immediately available for a house deposit.
Understand how a fair division is assessed
The property settlement framework considers financial contributions, such as deposits and earnings, alongside non-financial contributions, such as renovations, and contributions as a homemaker or parent. Paid employment is not the only contribution the law recognises.
The court also considers current and future circumstances, including age, health, earning capacity, financial resources and the care and housing needs of children. The outcome must be just and equitable. There is no universal formula or guaranteed equal division.
From 10 June 2025, the updated framework expressly addresses relevant effects of family violence, including economic or financial abuse. Intentional or reckless material wastage and the circumstances of liabilities can also matter. Explain the financial consequences to your lawyer and preserve supporting evidence. A larger adjustment is not automatic simply because an allegation is made.
Exchange complete financial information
The duty of full and frank disclosure requires relevant financial information to be exchanged, including indirect interests held through companies or trusts. It applies while preparing for proceedings and continues as circumstances change until the case is finalised.
Gather tax returns, bank and loan statements, superannuation records, business documents and evidence of significant gifts, inheritances or family loans. Disclose relevant disposals of property rather than assuming a transferred asset no longer matters.
An incomplete picture can produce an unfair agreement and further litigation. Failure to disclose can have serious consequences, including costs orders and other sanctions. Have your lawyer identify the records needed and arrange secure exchange.
Resolve the dispute and formalise the outcome
De facto property proceedings for NSW couples are generally brought in the Federal Circuit and Family Court of Australia. Many disputes can be resolved without a contested final hearing.
The pre-action procedures generally require genuine attempts to resolve the dispute and exchange relevant information. Negotiation or mediation may help. Exceptions can apply for urgency, family violence or other specified circumstances, so do not delay seeking advice where assets or safety are at risk.
If agreement is reached, consent orders can make it legally binding after the court checks the applicable requirements, including whether property orders are just and equitable. A financial agreement is another option, with technical requirements and independent legal advice for each party before signing. A private note is not automatically a binding financial agreement.
Plan how the agreement will work
Address refinancing, sale arrangements, transfer deadlines, superannuation implementation and who pays outgoings until completion. An agreement that one partner will pay a mortgage does not itself release the other from the lender’s contract. The separating with debt guide explains why lender releases require specific attention.
De facto maintenance is a separate issue that may arise where one partner cannot adequately support themselves and the other has capacity to contribute, subject to statutory requirements. Parenting arrangements and child support also require separate consideration. Do not assume a property agreement resolves every financial or parenting issue.
Speak with Christine about your circumstances
Ask Christine Manolakos and the CM Lawyers property settlement team to review eligibility, the separation date, contributions and proposed settlement terms. Bring a relationship timeline, current financial records and any existing financial agreement.
Contact CM Lawyers early, particularly if the two-year deadline is approaching or the relationship is disputed. This guide should always be checked against your circumstances by a lawyer before you sign an agreement or make an application.
This article provides general information for de facto couples in NSW. It is not personal legal or financial advice. Have a lawyer check your eligibility, deadlines and proposed settlement against your circumstances.
Key resources
Family Law Act 1975 — Sections 4AA, 44, 90SB, 90SK, 90SM and 90RI.
FCFCOA de facto relationships guidance — Eligibility and the federal court pathway.
High Court decision in Fairbairn v Radecki — Determining whether a relationship has ended.
FCFCOA financial and property overview — Contributions, circumstances and just and equitable outcomes.
Family law property changes from June 2025 — The updated statutory framework.
FCFCOA disclosure guidance and pre-action procedures — Preparation and document exchange.
Consent orders and financial agreements — Ways to formalise an agreement.
Superannuation and de facto maintenance — Related financial matters.
