1. Is My Relationship Legally Considered De Facto?
People sometimes assume that becoming a de facto couple is as simple as living at the same address for two years.
Family law is not quite that straightforward.
Under the Family Law Act 1975, a de facto relationship generally involves two people who are not legally married to each other or related by family and who are living together as a couple on a genuine domestic basis. The definition can apply to both opposite-sex and same-sex couples.
When deciding whether a de facto relationship existed, a range of circumstances can be relevant. These can include:
- how long the relationship lasted
- whether and how the couple lived together
- the way finances were managed
- whether property was owned or acquired together
- the degree of commitment to a shared life
- whether there were children
- whether the relationship was formally registered
- how the relationship was presented publicly.
No single factor automatically decides the question. The Court can consider the relationship as a whole and give different weight to different circumstances depending on the case.
This becomes particularly important when one person says there was a de facto relationship and the other says there was not.
For example, one party may describe the relationship as a committed domestic partnership while the other argues they were simply dating, sharing accommodation or keeping their financial lives completely separate.
That disagreement can affect whether a property or maintenance claim can proceed.
Do We Have to Have Lived Together for Two Years?
Not necessarily.
Two years is particularly important when determining whether the Court can make certain financial orders, but it is not an absolute definition of whether two people were in a de facto relationship.
For financial proceedings, the Court generally needs to be satisfied that an eligible de facto relationship existed and that at least one recognised gateway condition applies. These include circumstances where:
- the relationship lasted for at least two years
- there is a child of the relationship
- the relationship was registered under a prescribed State or Territory law, or
- one party made significant contributions and failing to make an order would result in serious injustice.
There are also jurisdictional requirements that need to be considered.
This is why receiving advice based on the facts of your relationship is more useful than relying on a simple “two-year rule”.
Does a De Facto Relationship Have to Be Registered in NSW?
No.
Couples do not have to register their relationship in NSW simply to be capable of being recognised as de facto. Registration is available, however, through the NSW Relationship Register, and a registered relationship can be relevant when establishing legal status.
If you are unsure whether your relationship qualifies, Quill Legal can look at the history and evidence with you and advise where you are likely to stand.
2. De Facto Property Settlement
One of the biggest concerns following de facto separation is usually property.
You may own a home together.
One person may have owned the property before the relationship began.
The mortgage might be in both names while one person made most of the repayments.
You may have separate bank accounts but shared living expenses.
There could be investments, vehicles, businesses, superannuation, credit cards or other debts involved.
It is very easy for both people to start with a fixed position about what they believe is “theirs”. Family law, however, does not determine a property settlement simply by checking whose name appears on an asset.
Nor is there an automatic 50/50 rule.
The current family law framework considers the property and liabilities of the parties, the contributions made throughout the relationship and relevant current and future circumstances before determining what outcome is just and equitable.
Contributions can include much more than salary or mortgage repayments.
They may include:
- property brought into the relationship
- wages and other income
- gifts and inheritances
- financial contributions towards assets
- work performed in a family business
- renovations and improvements
- homemaking
- caring for children
- other non-financial contributions.
Relevant current and future circumstances can also include matters such as age, health, earning capacity, financial resources and responsibility for the care and housing of children.
Since 10 June 2025, the Family Law Act also expressly recognises the economic effect of family violence where relevant to property settlement, including its effect on contributions and a party’s current and future circumstances.
Reaching a Property Agreement
Going to court is not the only way to settle property.
If you and your former partner can reach an agreement, it may be possible to formalise the arrangement through consent orders or, depending on the circumstances, a Binding Financial Agreement.
Formalising the arrangement can be important.
A handshake or informal written agreement may leave unanswered questions or create problems later, particularly where assets need to be transferred or superannuation is involved.
Quill Legal can assist by:
- identifying the property, liabilities and financial resources that need to be considered
- helping obtain and review relevant financial disclosure
- advising about the likely range of outcomes
- negotiating with your former partner or their solicitor
- helping you prepare for mediation
- preparing or reviewing consent orders and financial agreements
- dealing with superannuation issues
- assisting with property transfers following settlement
- representing you in court if an agreement cannot be reached.
Our approach is always guided by the circumstances.
If the matter can be resolved sensibly without prolonged litigation, that is usually preferable. If the other party refuses to disclose assets, will not negotiate reasonably or court intervention becomes necessary, we can help you respond accordingly.
Don’t Forget the Two-Year Time Limit
If you need to commence property proceedings following the breakdown of a de facto relationship, the general time limit is two years from the end of the relationship.
Applications outside that period may require permission from the Court, and permission is not automatic.
If your separation occurred some time ago, speak with a lawyer sooner rather than assuming you still have plenty of time.
3. Children, Parenting and Child Support
Being married or unmarried does not make your children less important under family law.
The Federal Circuit and Family Court deals with parenting matters involving children of de facto couples in the same way it deals with children whose parents were married.
After separation, parents may need to decide issues such as:
- where the children will live
- how much time they will spend with each parent
- arrangements for weekends and school holidays
- communication with each parent
- schooling
- medical decisions
- travel
- handovers
- other important aspects of their care and upbringing.
When communication between parents remains workable, these arrangements may be resolved through discussion, negotiation or Family Dispute Resolution.
Depending on the circumstances, an agreement can then be recorded in a parenting plan or formalised through consent orders.
If agreement cannot be reached, Quill Legal can advise you about parenting proceedings and represent you through the court process.
The aim is not to use children as leverage in a dispute between adults.
We help our clients separate the emotional conflict between former partners from the decisions that need to be made as parents.
Child Support After a De Facto Separation
Child support is another issue that may need to be considered separately from property settlement.
Quill Legal can advise if you are:
- trying to understand a child support assessment
- considering a private child support agreement
- negotiating additional expenses
- disputing an assessment
- dealing with unpaid child support
- unsure whether you are paying or receiving the appropriate amount.
The fact that the parents were never married does not prevent child support arrangements from being made.
We can help you understand the system and how it interacts with the wider family law issues following separation.
4. Binding Financial Agreements for De Facto Couples
Not every client comes to us because their relationship has already ended.
Sometimes people simply want certainty about money and property before problems arise.
Under the Family Law Act, de facto couples can enter into Financial Agreements before, during or after their de facto relationship.
Depending on the circumstances, a Binding Financial Agreement may deal with issues such as:
- property each person brings into the relationship
- jointly acquired property
- businesses
- investments
- inheritances
- liabilities
- superannuation
- financial arrangements following separation
- de facto partner maintenance.
For some couples, having these discussions early can remove uncertainty rather than create it.
This can be particularly relevant where one or both partners have significant existing assets, businesses, children from previous relationships, expected inheritances or very different financial positions.
Independent Legal Advice Is Important
A Financial Agreement is not simply a document the two of you download, sign and put in a drawer.
There are strict requirements that need to be met for an agreement to be binding, including mandatory independent legal advice for each party about prescribed matters.
An agreement that has not been prepared or executed properly can create significant problems precisely when you expected it to protect you.
Quill Legal can advise you about whether a Financial Agreement is appropriate, explain its effect in plain English and prepare or review an agreement that reflects your circumstances.
If your former partner has presented you with an agreement, we can also provide the independent advice you need before you decide whether to sign it.
5. De Facto Partner Maintenance
Property settlement and maintenance are not necessarily the same thing.
In some circumstances after a de facto relationship ends, one former partner may seek financial support from the other.
De facto maintenance can become relevant where a person is unable to adequately meet their own reasonable expenses from their income or assets and the former partner has the capacity to provide financial assistance. The Court considers the applicant’s needs as well as the other party’s capacity to pay.
Relevant circumstances may include matters such as:
- income and financial resources
- age and health
- ability to work and earn an income
- responsibility for caring for children
- reasonable living expenses
- the effect of family violence
- the other party’s financial capacity.
Maintenance is not automatically payable simply because one person earned more during the relationship.
The circumstances need to be properly assessed.
Quill Legal can advise you if you believe you may need maintenance, if your former partner is seeking maintenance from you or if maintenance needs to be considered as part of a broader financial settlement.
Like property proceedings, applications for de facto maintenance generally need to be made within two years of the breakdown of the de facto relationship.
