Updated October 2026
CM Law’s Ultimate 50 Things You Need to Know About Property Settlement During Divorce | Article 12
The date of separation can affect your property settlement, the evidence you need and the time available to bring a claim. For de facto couples in NSW, a disagreement about when the relationship ended can determine whether a financial application is out of time. However, separation does not automatically end financial obligations or freeze the assets available for division. Understanding these distinctions helps you protect your position before a disagreement becomes expensive litigation.
1 Establish when the relationship ended
Separation is more than a change of address. A couple may separate while continuing to live in the same home, particularly where housing costs or children’s needs make moving difficult. Equally, living apart for work, illness or care does not necessarily mean the relationship has ended.
For de facto partners, the question is whether their relationship as a couple on a genuine domestic basis has broken down. Their conduct and circumstances matter. A difficult argument, separate bank accounts or one person’s private belief may be relevant, but none automatically decides the issue. Record what happened and what changed, rather than choosing whichever date appears financially convenient.
2 Check the correct property settlement deadline
The Federal Circuit and Family Court of Australia explains the usual deadlines. De facto partners generally have two years from relationship breakdown to apply for property adjustment or maintenance. Married couples generally have 12 months after their divorce becomes final. Married couples can seek a property settlement before divorcing; they do not need to wait for that deadline to begin.
Under section 44 of the Family Law Act, a late de facto application may proceed with both parties’ consent or the court’s permission. For permission, hardship to a party or child is one statutory threshold; maintenance applications have an additional specified ground. Permission is discretionary. Special timing rules can also apply where a financial agreement is set aside or found invalid.
Negotiations and mediation do not, by themselves, stop the clock. If the separation date is disputed, obtain advice well before the earliest arguable deadline. Eligibility for de facto financial orders also has separate relationship and geographical requirements.
3 Preserve evidence of the separation date
Prepare a timeline while events are fresh. Keep relevant messages, emails and notes recording the end of the relationship. Identify changes in living arrangements, household routines, shared activities and finances. Note when family members or friends were told, and retain relevant correspondence with government agencies.
Where you remained under one roof, explain why and how daily life changed. The Court’s separation under one roof guidance identifies useful categories of evidence, although its specific affidavit requirements concern divorce applications. Record any attempted reconciliation accurately. Your solicitor needs the full history, including facts that appear inconsistent with your preferred date. Keep records you lawfully hold and discuss safe communication where direct contact is difficult.
4 Understand what separation means for your assets
The property pool is not generally fixed on the separation date. Legal Aid NSW explains that the court usually considers property owned at the final hearing, including property acquired after separation. Most assets are valued around that hearing. During negotiations, updated valuations and balances help the parties assess their actual position.
An inheritance, increase in business value or new liability after separation is not automatically ignored. Its treatment depends on the circumstances, including its source, the parties’ contributions and their current and future circumstances. Considering an asset does not mean dividing it equally. Mortgage payments, parenting and homemaking contributions after separation can also remain relevant. Keep supporting records rather than assuming that moving out ends your interest or continuing to pay the mortgage guarantees a particular percentage.
5 Continue disclosure and assess ongoing support
The duty of financial disclosure continues through a property dispute. Exchange complete information about income, assets, liabilities and financial resources, and update it as circumstances change. Separation is not a reason to omit a new account, conceal a transaction or rely on an outdated balance sheet.
The property law changes commencing on 10 June 2025 expressly address the economic effect of family violence where relevant, alongside contributions and current and future circumstances. A just and equitable outcome remains essential. Spousal or de facto maintenance may also be available where one person cannot adequately support themselves and the other has capacity to assist. Separation does not establish automatic financial independence.
Christine’s experience with a disputed separation date
I remember a client whose former de facto partner had called her something I certainly would not repeat here. For her, that exchange marked the end of the relationship. When he later made a financial claim, he relied on a different, later separation date.
That difference mattered. We successfully relied on the earlier separation date associated with that exchange, rather than the date he put forward. On that basis, his claim was out of time and we were able to bring the matter to an end on the time-limit issue.
It is a good example of why I pay attention when someone tells me when they understood the relationship was over. What sounds like background to the breakup can turn out to be central to the legal position. Before we become absorbed in arguments about who should receive what, we need to check whether the claim can proceed at all.
The outcome depended on that matter’s circumstances. An insult or a private feeling does not, by itself, establish the legal separation date. The relationship as a whole must be assessed, and the consent and court-permission exceptions to the usual deadline still need to be considered.
A verified case on relationship breakdown
In Fairbairn v Radecki (2022), the High Court considered a de facto relationship after one partner developed dementia and entered aged care. Her partner opposed selling her home to fund her care. Examining the circumstances and his conduct, the Court found that their relationship had broken down by no later than 25 May 2018.
The Court explained that separate residences and illness do not necessarily end a relationship. The question concerns whether the parties continue sharing life as a couple. This was a decision about relationship breakdown, rather than dismissal for missing a deadline. It demonstrates why the wider evidence matters when identifying a separation date.
What the statistics show
The ABS Marriages and Divorces 2025 release, published on 28 July 2026, reports a median marriage duration of 9.4 years to separation and 13.4 years to divorce for divorces granted in 2025. These are different milestones. The figures describe Australian divorces, not de facto breakups or how often separation dates are disputed. They cannot predict the duration, cost or outcome of your property case.
Practical steps to protect your position
First, write down the relationship history and gather supporting records. Second, ask your solicitor to check the earliest possible filing deadline. Third, obtain current financial disclosure and valuations. Fourth, explore an agreement where appropriate, while preserving your ability to file within time. Do not allow ongoing discussions to substitute for protecting a deadline.
Keep the dates on original records visible. A message sent at the time may explain events more clearly than a recollection written years later. Continuing to share an account or pay household expenses should be explained in context, particularly if the arrangement continued for practical reasons. Your timeline should distinguish the breakup, any move to another address and subsequent financial arrangements.
If you reach agreement, consider formalising it through consent orders or an appropriate financial agreement. Simply agreeing on a separation date does not finalise the property settlement. Record the agreed obligations clearly and obtain advice about the documents needed to give the financial arrangement legal effect.
If you disagree about the separation date, raise it early. Addressing that issue promptly can clarify whether a claim can proceed and reduce unnecessary disputes about property division. Contact CM Lawyers for advice about your separation date, disclosure obligations and property settlement options in NSW.
Key resources
- Family Law Act 1975 — Sections 4AA and 44 address de facto relationships, time limits and exceptions.
- Financial and property overview — Court guidance on eligibility, agreements and filing deadlines.
- Separated but living under one roof — Evidence and affidavit requirements for divorce applicants.
- How the court decides property settlement cases — Legal Aid NSW guidance on current property, valuations and contributions.
- Duty of disclosure and spousal and de facto maintenance — Court guidance on financial information and ongoing support.
- Property law changes from 10 June 2025 — Attorney-General’s Department explanation for separating couples.
- Fairbairn v Radecki (2022) — Official High Court judgment, particularly paragraphs 28–34 and 42–47.
- Marriages and Divorces Australia 2025 — ABS release dated 28 July 2026, selected divorce indicators.
