Property Settlements for De Facto Couples in Australia

De facto couples in New South Wales have property settlement rights under the Family Law Act 1975 (Cth) that closely mirror those of married couples, including superannuation splitting. To use them you generally need to pass a threshold (usually a relationship of at least 2 years, or a child, or substantial contributions, or a registered relationship) and apply within 2 years of separation. Since 10 June 2025, the Act sets out the decision-making framework in the legislation itself, requires the court to consider the economic effect of family violence, treats pets as a separate category, and puts the duty of financial disclosure into the Act.

Question	Short answer
Do de facto partners have property rights?	Yes. The Family Law Act 1975 (Cth) lets a de facto partner apply for property adjustment and, in some cases, maintenance, in much the same way as a married person.
Is there a minimum relationship length?	Usually 2 years, but not always. A child of the relationship, substantial contributions where serious injustice would otherwise result, or a registered relationship can each satisfy the threshold instead.
What is the time limit?	2 years from the end of the de facto relationship to apply for property or maintenance orders. Applying later needs the court’s permission, which is not automatic.
How does the court divide property?	It identifies the property and debts, assesses each person’s contributions, considers current and future circumstances (including, where relevant, the economic effect of family violence), and only makes orders that are just and equitable.
Is superannuation included?	Yes. Superannuation can be split between de facto partners by agreement or court order.
Who keeps the pet?	Since 10 June 2025 the court can make orders about a companion animal as a separate category, including sole ownership, but cannot order joint ownership.
Do we have to go to court?	No. Most settlements are finalised by consent orders or a binding financial agreement without anyone attending a courtroom.
Next step	Speak with Caspian Legal in Hornsby on 02 7264 3200 so the threshold, time limit and your entitlements can be assessed early.

Jurisdiction

This article is about Commonwealth law: the Family Law Act 1975 (Cth) as it applies to de facto couples in New South Wales and most other states and territories. De facto property matters are usually dealt with by the Federal Circuit and Family Court of Australia rather than the NSW Local Court. Western Australia runs its own system for de facto property under state law, although since 28 September 2022 WA de facto couples can also split superannuation under the Family Law Act. The law described here includes the reforms made by the Family Law Amendment Act 2024 (Cth), which commenced on 10 June 2025 and apply to new and existing matters except those in which the final hearing had already begun before that date. The information is current as at 24 August 2026.

Why this matters if you have separated in Hornsby

The end of a long relationship is hard enough without uncertainty about the house, the mortgage, superannuation and even the family dog. Many people in de facto relationships assume they have fewer rights than married couples, or that whoever’s name is on the title keeps the asset. Both assumptions are wrong, and acting on them can be costly. There is also a deadline: waiting more than 2 years after separation can mean you need the court’s permission just to start.

If you have separated, or are thinking about separating, you can book a consultation with Caspian Legal before you agree to anything or move assets. Call 02 7264 3200 or visit caspianlegal.com.au. We assist clients in Hornsby and surrounding Upper North Shore suburbs including Waitara, Asquith, Wahroonga, Thornleigh and Pennant Hills.

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

Broadly, yes. Since the national de facto reforms commenced (1 March 2009 for most states and territories, 1 July 2010 for South Australia, with Western Australia running its own system), separating de facto couples have been able to seek property adjustment and maintenance under the Family Law Act, and since 10 June 2025 the decision-making framework in section 90SM for de facto couples mirrors the framework in section 79 for married couples. The main differences are at the start: a de facto partner must satisfy a relationship threshold and a geographical connection, and must apply within 2 years of separation rather than within 12 months of a divorce order. Once the court has jurisdiction, the way the property pool is assessed and divided is essentially the same.

Plain English glossary

Term	What it means
De facto relationship	A relationship between two people (same or different sex) who are not married to each other or related by family, and who live together as a couple on a genuine domestic basis. Defined in section 4AA of the Family Law Act.
Separation	The end of the relationship. There is no formal document; it is a question of fact, and the date matters because the 2-year time limit runs from it.
Property pool	Everything either person owns or owes, in joint or sole names, including real estate, savings, shares, businesses, vehicles, superannuation and debts.
Contributions	Financial contributions (income, deposits, mortgage payments), non-financial contributions (renovations, unpaid work in a business) and contributions as homemaker or parent. All three types count.
Current and future circumstances	The forward-looking factors the court weighs, such as age, health, income and earning capacity, care of children, and, where relevant, the economic effect of family violence. This replaced the old “future needs” language on 10 June 2025.
Superannuation splitting	Dividing superannuation between partners by agreement or court order under Part VIIIB of the Family Law Act. The split amount stays in the superannuation system until a condition of release under superannuation law is met.
Consent orders	Court orders made by agreement. An Application for Consent Orders is filed with the Federal Circuit and Family Court of Australia and, if the court is satisfied the orders are just and equitable, they are made without anyone attending court.
Binding financial agreement (BFA)	A private contract under the Family Law Act dealing with property or maintenance, made before, during or after a relationship. Each party must receive independent legal advice for it to bind.
Duty of disclosure	The obligation to give the other party full and frank information about your financial situation. Since 10 June 2025 this duty sits in the Act itself (section 90RI for de facto couples) and applies from before proceedings start, including during mediation.
Family dispute resolution (FDR) and mediation	Structured negotiation with an independent practitioner, used to resolve property issues without a court hearing.
Companion animal	An animal kept primarily for companionship, such as the family dog or cat. Since 10 June 2025 the court deals with companion animals under their own provisions rather than as ordinary property.
Participating jurisdiction	A state or territory that has referred de facto financial matters to the Commonwealth. Every state and territory participates except Western Australia for property matters.

How the law works for de facto property settlements

Step one: was there a de facto relationship?

Section 4AA of the Family Law Act asks whether the two of you had a relationship as a couple living together on a genuine domestic basis. The court looks at the whole picture: the duration of the relationship, the nature and extent of your common residence, whether a sexual relationship existed, financial dependence or interdependence, the ownership and use of property, the degree of mutual commitment to a shared life, whether the relationship was registered, the care and support of children, and the reputation and public aspects of the relationship. No single factor is essential. A de facto relationship can exist between same-sex partners, and can exist even if one person is still married to, or in another de facto relationship with, someone else.

Step two: do you pass the threshold in section 90SB?

A court can only make de facto property or maintenance orders if at least one of the following is satisfied: the relationship lasted at least 2 years in total (periods can be added together); there is a child of the relationship; one party made substantial contributions and serious injustice would result if no order were made; or the relationship was registered under a state or territory scheme, such as the NSW Relationships Register. A couple together for less than 2 years with no child and no registration will usually need to rely on the substantial contributions ground, which is a higher bar.

Step three: the geographical requirement

The Act also requires a connection with a participating jurisdiction, which covers every state and territory except Western Australia for de facto property matters. For a couple who lived in New South Wales, this requirement is almost always satisfied. It matters mainly for couples who spent most of the relationship overseas or in Western Australia, and those situations need specific advice.

Step four: the 2-year time limit

Under section 44(5) of the Family Law Act, an application for de facto property or maintenance orders must generally be made within 2 years after the relationship ended. After that, section 44(6) requires the court’s leave, which usually means showing that hardship would be caused to you or a child if leave were not granted. Leave is discretionary and is refused in some cases, so the safest course is to resolve or file within time. Because the end date of a de facto relationship can itself be disputed, the deadline can be less certain than people expect, which is another reason not to leave things late. Section 44(5) also allows an application to be made after the 2 years where both parties consent to it, so consent orders can still be sought, and a binding financial agreement can be made at any time; what you lose after the deadline is the ability to compel an outcome without the court’s leave.

How the court decides who gets what: the framework since 10 June 2025

The Family Law Amendment Act 2024 (Cth) rewrote the property provisions with effect from 10 June 2025. For de facto couples, section 90SM now sets out the approach on the face of the Act. The court identifies each party’s legal and equitable interests in property and their liabilities; assesses the contributions each person made, financial and non-financial, direct and indirect, including as homemaker and parent; considers the parties’ current and future circumstances; and only makes an order if satisfied that, in all the circumstances, it is just and equitable to do so. There is no starting presumption of a 50/50 split and no formula. Two honest lawyers will often give a percentage range rather than a single number, because the assessment is discretionary.

The current and future circumstances the court can weigh include age and state of health, income, property and financial resources, earning capacity, whether either party cares for a child of the relationship (including the child’s housing needs), liabilities either party has incurred, and whether a party has intentionally or recklessly wasted property. Money already spent is now generally dealt with through these express wastage and liability considerations rather than by notionally adding it back into the pool, an older practice that recent decisions indicate no longer applies in its traditional form.

Family violence and property settlements

Since 10 June 2025 the Act expressly requires the court, where relevant, to consider the economic effect of family violence to which one party has subjected or exposed the other. This applies at two points: when assessing contributions (how the violence affected a party’s ability to contribute) and when assessing current and future circumstances (the ongoing economic impact). The definition of family violence in section 4AB also now contains a clearer, expanded list of examples of economic and financial abuse, such as unreasonably denying a partner financial autonomy or forcing debts onto them. Before these amendments, family violence was considered only through case law principles that applied in limited circumstances. Evidence is still required; the change is that the Act itself now directs attention to these matters.

Superannuation

Superannuation is treated as property that can be split between de facto partners under Part VIIIB of the Family Law Act, by court order (including consent orders) or by a superannuation agreement within a binding financial agreement. A split does not convert superannuation into cash; the transferred amount stays in the superannuation system. Since 28 September 2022, de facto couples in Western Australia can also split superannuation, under Part VIIIC. Superannuation is often one of the largest assets in the pool, particularly where one partner reduced paid work to care for children, and overlooking it is one of the most common and expensive mistakes in informal settlements.

Pets: the companion animal rules

Until 10 June 2025, pets were simply property. The Act now defines a companion animal as an animal kept primarily for companionship (excluding assistance animals and animals kept for business, agricultural or laboratory purposes) and gives the court its own framework. The court can order that one party has sole ownership, that the animal be transferred to a party, or that it be sold, on an interim or final basis, but cannot order joint or shared ownership. The factors include the circumstances in which the animal was acquired, who has cared for and paid for it, any attachment of a party or a child to the animal, any family violence, and any history of cruelty or threatened cruelty to the animal.

The duty of disclosure

Both parties must give full and frank disclosure of their financial circumstances. Since 10 June 2025 this duty is in the Act itself, in section 90RI for de facto couples, and it applies from before proceedings start, including during negotiation, mediation and family dispute resolution, and continues until the matter is finalised. Consequences of non-disclosure can include the court taking the non-disclosure into account when dividing property, costs orders, and orders being set aside later. Practically, hiding assets tends to backfire: courts can proceed on the view of the evidence least favourable to the person who failed to disclose.

Four ways to finalise a de facto property settlement

An informal agreement, even in writing, does not end financial ties under the Family Law Act and leaves both of you exposed to a later claim within the time limit (or after it, with leave). To achieve finality you generally need either consent orders or a binding financial agreement. Consent orders are filed with the Federal Circuit and Family Court of Australia and are made without a court attendance if the court is satisfied the orders are just and equitable. A binding financial agreement does not involve the court, but each party must receive independent legal advice and strict formal requirements apply. Contested litigation is the last resort: the court’s pre-action procedures expect genuine attempts to resolve the matter, including dispute resolution and an exchange of disclosure, before proceedings are filed.

De facto and married couples compared

Issue	De facto couples	Married couples
Law that applies	Family Law Act 1975 (Cth), Part VIIIAB (WA: state law for property)	Family Law Act 1975 (Cth), Part VIII
Threshold to apply	Section 90SB: 2 years, or a child, or substantial contributions with serious injustice, or a registered relationship	Marriage itself; no equivalent threshold
Time limit	2 years from the end of the relationship (leave needed after that)	12 months from a divorce order becoming final (leave needed after that)
Proving the relationship	May need to be proved under section 4AA; start and end dates can be disputed	Proved by the marriage certificate
Division framework	Section 90SM: property and liabilities, contributions, current and future circumstances, just and equitable	Section 79: the same framework
Superannuation splitting	Available (Part VIIIB; Part VIIIC for WA de facto couples since 28 September 2022)	Available (Part VIIIB)
Consent orders and BFAs	Available	Available

Step by step: a typical de facto property settlement

1. Confirm the basics early: when the relationship started and ended, whether the section 90SB threshold is met, and how much of the 2-year window remains.
2. Get initial legal advice before agreeing to anything, moving significant funds, or leaving the home, so you understand your entitlements and obligations first.
3. Exchange full and frank disclosure: bank and superannuation statements, payslips, tax returns, loan documents, business records and valuations. The duty applies to both of you from the outset.
4. Identify and value the property pool, including superannuation and debts. Obtain formal valuations for real estate, businesses or other assets where values are disputed.
5. Assess contributions and current and future circumstances, including care of children, earning capacity and, where relevant, the economic effect of any family violence, to reach a realistic range.
6. Negotiate, directly through lawyers or at mediation. Most matters settle at this stage without any court proceedings.
7. Formalise the agreement by consent orders or a binding financial agreement, and implement it: transfer titles, refinance loans, and give any superannuation fund the procedural notice it requires for a split.
8. If agreement is not possible, comply with the pre-action procedures and file in the Federal Circuit and Family Court of Australia before the time limit expires.

Ways to settle: benefits and risks

Option	Potential benefits	Risks to weigh
Informal agreement only	Fast and cheap in the short term.	Not binding under the Family Law Act. Either party can still claim within the time limit or seek leave later. Asset transfers may miss duty and tax concessions that can apply to formal orders or agreements.
Binding financial agreement	Private, flexible, no court scrutiny of the deal; can be made before, during or after the relationship.	Strict formalities; both parties need independent legal advice; can be set aside in certain circumstances, for example non-disclosure or unconscionable conduct.
Consent orders	Court-made orders with strong finality; no court attendance; the court checks the orders are just and equitable; enables superannuation splitting orders.	Requires agreement and full disclosure; the court can decline orders it considers not just and equitable; some lead time to prepare and file.
Contested court proceedings	A binding outcome where agreement is impossible, and interim orders where urgent protection is needed.	Cost, delay and stress; outcomes are discretionary; pre-action procedures generally must be attempted first.

Document checklist

For a first consultation about a de facto property settlement, it helps to bring:

• A timeline of the relationship: when you started living together, key purchases, births of children, and the separation date
• Evidence relevant to the relationship if it may be disputed: lease or title documents, joint accounts, insurance or superannuation beneficiary nominations, photographs, registration certificate if the relationship was registered
• Recent statements for all bank accounts, credit cards, loans and mortgages, in sole and joint names
• Your three most recent tax returns and payslips, and any company, trust or business records
• Superannuation member statements for both of you, if available
• Rate notices, appraisals or valuations for any real estate
• Any existing binding financial agreement, court orders, or correspondence about a proposed settlement
• Details of any family violence orders or matters relevant to safety

What not to do

1. Do not assume the 2-year time limit is flexible. Leave to apply out of time is discretionary and can be refused.
2. Do not rely on a handshake or text message agreement to finalise property. It does not bind either of you under the Family Law Act.
3. Do not hide, move or dispose of assets. The duty of disclosure now sits in the Act, and non-disclosure can rebound on you in the division and in costs.
4. Do not sign a binding financial agreement without independent legal advice. Advice from your own lawyer is a legal requirement for the agreement to bind, not an optional extra.
5. Do not forget superannuation, long service leave, trusts or business interests when listing the property pool.
6. Do not make significant financial decisions, such as selling the home or redrawing on the mortgage, without advice, particularly where safety or family violence is a factor.
7. Do not treat the pet as a bargaining chip. The court now considers care, attachment and any cruelty or violence when deciding who keeps a companion animal.

Common mistakes and myths

• Myth: living together for 6 months creates a “common law marriage” with automatic rights. There is no such rule. The threshold for property orders is in section 90SB and usually requires 2 years, a child, substantial contributions or registration.
• Myth: everything is split 50/50. There is no presumption of equal division; the outcome depends on contributions, current and future circumstances, and what is just and equitable.
• Myth: the house is in my name, so my ex has no claim. Property in sole names, acquired before or during the relationship, can still form part of the pool.
• Myth: superannuation is untouchable. It can be split by agreement or order.
• Myth: de facto partners must go to court to divide property. Most settlements are finalised by consent orders or a binding financial agreement without a hearing.
• Mistake: confusing the definition of a de facto relationship (section 4AA) with the 2-year threshold (section 90SB). A relationship can exist at law even if it lasted less than 2 years; the 2 years is a gateway to most property orders, not the definition.
• Mistake: treating the separation date casually. It starts the 2-year clock and can be genuinely disputed, especially where a couple separated under one roof.

Time limits and the risk of waiting

The 2-year limitation period from the end of the relationship is the critical deadline, and identifying the end date is not always straightforward. Beyond the limitation period, delay carries practical risks: assets can be spent or encumbered, values move, records go missing, and superannuation or duty concessions that attach to formal orders or agreements can be lost if transfers happen informally first. Where family violence or financial control is involved, early advice also allows urgent protective steps to be considered. Time limits may also apply to related matters, such as challenging a transaction designed to defeat a claim, so obtain advice promptly even if you hope to settle amicably.

Frequently asked questions

We were together for 18 months. Can I still make a claim?

Possibly. The 2-year threshold is only one of four gateways in section 90SB. If there is a child of the relationship, if the relationship was registered, or if you made substantial contributions and serious injustice would result without an order, the court can still act. Separate periods of the same relationship can also be added together to reach 2 years.

Does it matter that we never married or that we are a same-sex couple?

No. The Family Law Act applies to de facto couples of the same or different sexes, and a de facto relationship can exist even if one partner is still legally married to someone else.

What if more than 2 years have passed since we separated?

If your former partner agrees, you can still finalise the settlement: a binding financial agreement can be made at any time, and section 44(5) permits an application, including an Application for Consent Orders, to be made after the 2 years with both parties’ consent. To start contested proceedings without that consent you would need the court’s leave under section 44(6), which generally requires showing hardship. Whether leave would be granted depends on the evidence, so get advice before assuming the door is closed or open.

How is the percentage split decided?

There is no formula. The court weighs each party’s financial and non-financial contributions, including homemaking and parenting, and then the current and future circumstances of each party, such as income, earning capacity, health and the care of children, and only makes orders that are just and equitable. A solicitor can give you a realistic range for your circumstances, but no one can promise a particular outcome.

Does family violence change the outcome?

It can, where it is relevant on the evidence. Since 10 June 2025 the Act requires the court to consider the economic effect of family violence when assessing both contributions and current and future circumstances, and economic and financial abuse are expressly recognised as family violence. The weight given depends on the facts of each case.

Can my ex claim my superannuation?

Superannuation belonging to either of you forms part of the property pool and can be split by consent orders, other court orders or a superannuation agreement. A split moves value between funds; it does not create an immediate cash payment.

Who keeps the dog?

If you cannot agree, the court can decide under the companion animal provisions that commenced on 10 June 2025. It can give one of you sole ownership, or order a transfer or sale, considering matters such as who cared for the animal, any attachment of a party or child, and any cruelty or family violence. It cannot order shared ownership.

Will I have to appear in a courtroom?

Usually not. Most de facto property matters resolve by negotiation or mediation and are formalised through consent orders, which are considered by the court without any attendance, or through a binding financial agreement. Court proceedings, filed in the Federal Circuit and Family Court of Australia, are a last resort if agreement cannot be reached.

Local help in Hornsby and the Upper North Shore

Caspian Legal is based at 22–28 Edgeworth David Avenue, Hornsby NSW 2077, and advises separating de facto partners from Hornsby, Waitara, Asquith, Wahroonga, Normanhurst, Thornleigh, Pennant Hills, Berowra and Mount Colah. Although family law is federal, almost all of the work in a property settlement, from disclosure and valuations to negotiation, mediation and drafting consent orders, happens locally, and where filing is necessary for our region it is with the Federal Circuit and Family Court of Australia, which has registries in Sydney and Parramatta. We also advise on how a family law settlement interacts with related issues we handle, including apprehended violence orders and updating your will after separation.

What happens in a first consultation

In a first consultation we listen to the history of the relationship and separation, check the section 90SB threshold and the 2-year time limit, sketch the property pool including superannuation and debts, and explain the settlement pathways: negotiation, mediation, consent orders, a binding financial agreement or, if necessary, court. We identify the documents needed for disclosure, flag any urgent issues such as jointly held funds, safety concerns or approaching deadlines, and give you a practical plan for the next steps and likely costs. You can meet us at our Hornsby office or by video.

Speak with a Hornsby solicitor about your de facto property settlement

The earlier you understand your position, the more options you keep open. Contact Caspian Legal to discuss your circumstances before you agree to anything or the time limit becomes a problem. Call 02 7264 3200, visit caspianlegal.com.au to book a consultation, or come to 22–28 Edgeworth David Avenue, Hornsby NSW 2077. If we have already helped you, we would be grateful for a Google review at g.page/r/CYig8LJ260Y7EB0/review.

Reviewed by Ryan Lasaki, Principal Solicitor, Caspian Legal.

Last updated: 24 August 2026.

This article is general information only and is not legal advice. It does not take into account your personal circumstances. Family law outcomes are discretionary and depend on the facts of each case, and the law, court procedures and fees change from time to time. You should obtain advice from a solicitor about your own situation before acting.

Sources

1. Family Law Act 1975 (Cth), ss 4AA, 4AB, 44(5) and (6), 90RI, 90SB, 90SK, 90SM, Parts VIIIAB, VIIIB and VIIIC: https://www.austlii.edu.au/cgi-bin/viewdb/au/legis/cth/consol_act/fla1975114/ (see for example s 90SB at https://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/fla1975114/s90sb.html)
2. Attorney-General’s Department, Family law changes from June 2025: information for family law professionals: https://www.ag.gov.au/families-and-marriage/publications/family-law-changes-june-2025-information-family-law-professionals
3. Federal Circuit and Family Court of Australia, Family law (property) changes from 10 June 2025: https://www.fcfcoa.gov.au/news-and-media-centre/fla-changes/fla2024
4. Federal Circuit and Family Court of Australia, Practice and procedure update: Family Law Rules (disclosure, sections 71B and 90RI): https://www.fcfcoa.gov.au/news-and-media-centre/updates-profession/june2025-fla-rules
5. Attorney-General’s Department, Superannuation splitting (Parts VIIIB and VIIIC; Family Law (Superannuation) Regulations 2025): https://www.ag.gov.au/families-and-marriage/families/superannuation-splitting
6. Attorney-General’s Department, Superannuation splitting: changes to the law (WA de facto couples from 28 September 2022): https://www.ag.gov.au/families-and-marriage/dividing-property-finances-and-superannuation-after-separation/superannuation-splitting/changes-law
7. Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Commencement Proclamation 2022 (Cth): https://www.legislation.gov.au/Details/F2022N00206
8. Federal Circuit and Family Court of Australia (consent orders, pre-action procedures and forms): https://www.fcfcoa.gov.au
9. NSW legislation website (Relationships Register Act 2010 (NSW)): https://legislation.nsw.gov.au