De facto relationships explained

What is a de facto relationship?

Under Australian family law, a de facto relationship exists where two people are not married to each other but live together as a couple on a genuine domestic basis.

The legislative definition (in the Family Law Act 1975 (Cth), and in similar terms in the Family Court Act 1997 (WA) for WA matters) is deliberately broad. No single factor decides it — the court looks at the relationship holistically.

De facto relationships are recognised regardless of whether the parties are of the same or different sex. The definition is gender-neutral and applies equally to same-sex and opposite-sex couples.

What factors does a court look at?

The court considers all of the following, weighted by the specific circumstances:

• Duration of the relationship — how long the parties have been together
• Common residence — whether they live (or have lived) together, and to what extent
• Degree of financial interdependence — joint accounts, shared expenses, financial support
• Joint property ownership — buying assets together
• Sexual relationship — though this is not determinative
• Children of the relationship — biological or adopted children together
• Public acknowledgment — whether the relationship is known to family, friends, employers, the community
• Registered relationship — formal civil union or registered domestic partnership (where available in the state)

No single factor is determinative. A couple can be in a de facto relationship without sharing finances, without having children, without continuous cohabitation, or without ticking every box on the list. What matters is the overall picture.

A leading case example

A WA case involved a couple who had been together for 15–16 years but never permanently lived together — instead, they spent three to four nights per week at one residence and the rest at the other, took shared holidays, were known to family and friends as a couple, and conducted their relationship publicly. The court found they were in a de facto relationship despite never having a single common residence.

This illustrates how broadly the assessment can run. Living together full-time is not a precondition.

The two-year threshold

For most family-law purposes, de facto partners gain property and spousal-maintenance rights when the relationship has lasted at least two years.

The two-year rule applies under the Family Law Act (which covers most states and territories). Western Australia operates under its own legislation — the Family Court Act 1997 (WA) — which has a similar but separately administered framework.

Exceptions to the two-year rule

The two-year threshold doesn't apply in three situations:

1. There is a child of the relationship. A biological or adopted child shared between the parties brings the relationship within family-law jurisdiction regardless of duration.
2. One party has made substantial contributions — financial or non-financial — and it would be unjust not to recognise the relationship. This is fact-specific but commonly applies where one party has put significant money or work into the other party's property or assets.
3. The relationship is a registered relationship under state law (where available — for example, NSW, VIC and QLD have registered relationship schemes; WA does not).

If any of these exceptions apply, the two-year rule is bypassed.

Joint property and shorter relationships

Joint property ownership is a factor that supports de facto status even where cohabitation is short. A letter from a bank confirming joint mortgage arrangements can support a case for de facto status. The shorter the cohabitation, the more important other indicators become.

A new partner who has just moved in

A new partner who has just moved in with you generally doesn't meet the de facto threshold unless they've been together with you for around two years, you have a child together, or one of you has made significant financial contributions to the other's assets. Just moving in doesn't, of its own, create the relationship for family-law purposes.

Accumulation — separations and reconciliations

What if you've been together, separated, reconciled, separated again?

Generally, periods of a de facto relationship can be accumulated to reach the two-year threshold. If you were together for 15 months, separated for two months, then resumed the relationship and have been together for another 12 months — that's a total of 27 months, which crosses the threshold.

There's a practical limit. If the separation was short (commonly cited as less than three months), the periods of the relationship are typically aggregated cleanly. If the separation was longer — say, six months or a year — the situation is more nuanced. The court may treat the periods as separate relationships, particularly if the parties were operating independently during the separation. Legal advice on the specific circumstances is recommended.

The key principle: relationships don't have to be continuous to count toward the threshold, but the gaps need to be short enough that the court treats it as one ongoing relationship rather than two separate ones.

What property rights do de facto partners have?

A de facto partner in a qualifying relationship (two years of cohabitation, or one of the exceptions) has the same property rights as a married spouse under the Family Law Act. The same framework applies:

• Property and assets can be divided between the parties
• Superannuation can be split
• Spousal maintenance can be sought
• Consent orders or a BFA can formalise the settlement

The mechanisms — contributions analysis, future needs assessment, the just-and-equitable standard, the time limits — all apply the same way to de facto couples as to married couples.

Does a de facto partner have a claim on property in the other party's sole name?

Potentially, depending on the length of the relationship and the contributions made.

• For short relationships where no significant contributions were made to a sole-name property, that property is more likely to be largely excluded from the asset pool.
• For longer relationships, especially where the other party lived in the property, paid mortgage contributions, or contributed to maintenance or improvements, a share may be recognised.

Each case turns on its facts. The longer the relationship, the more it tends toward the standard contributions-and-future-needs analysis that a married couple would face.

Pre-relationship assets

Pre-relationship assets — including a house, savings, or business one party owned before the relationship — are recognised as an initial contribution by the original owner.

• In short relationships, the initial contribution dominates and may largely exclude the asset from the pool.
• In longer relationships, joint contributions accumulate and the weight given to the initial contribution erodes over time.

This is the same framework as for married couples. The difference is that married couples are usually together longer on average, so initial-contribution arguments tend to weigh less in practice.

Time limits — the 2-year window after separation

Under the Family Law Act, a de facto partner must apply for property orders within 2 years of the date of separation.

After this deadline, leave of the court is required to bring a financial claim. Courts can grant leave in appropriate circumstances — particularly where both parties consent, or where joint property still needs to be formally transferred — but leave is not always granted.

Acting within the two-year window is strongly recommended. The same applies to spousal maintenance claims for de facto couples.

What happens after the two years

If you're past the two-year window and want to make a claim, you need to apply to the court for leave. The court considers:

• Whether granting leave would cause hardship to the applicant if refused
• Why the application is late
• Whether the delay has prejudiced the other party

Where both parties consent to the late filing, leave is generally granted readily. Where one party opposes, it's a real fight — and the court doesn't always grant leave.

Why joint property changes the picture

If there's still joint property that needs to be formally transferred (a title in both names, a joint mortgage), courts are very willing to grant leave even outside the two-year window. The existence of joint assets that can't be dealt with without a court order is a strong reason for the court to permit the late application. In practice, leave is rarely refused in this situation.

BFAs for de facto couples

Can a de facto couple have a BFA?

Yes. BFAs are available to and frequently used by de facto couples. They operate the same way as a pre-marriage or during-marriage BFA — setting out what each party is entitled to keep or receive if the relationship breaks down.

BFAs for de facto couples can cover:

• Pre-relationship assets each party brings in (including inheritances)
• How jointly accumulated assets would be divided
• Superannuation arrangements
• Spousal maintenance (set-off or otherwise)
• Future financial events

Both parties need independent legal advice from separate firms — the same requirement as for any BFA.

Pre-de-facto vs during-de-facto BFA

The legislation distinguishes between BFAs signed before the couple starts cohabiting and BFAs signed during the de facto relationship. The right section of the Act must be cited depending on the situation. Using the wrong section can affect the validity of the BFA.

If the couple has already been together for several years with many hallmarks of a de facto relationship — shared finances, mutual commitment, known to family and friends, shared holidays — they may already be in a legal de facto relationship even before formally moving in together. In that case, the BFA needs to be drafted as a during-relationship BFA rather than a pre-relationship one.

Talk to us at intake about the timing of your relationship, so the BFA is drafted under the correct provision.

Blended BFAs — covering both de facto and marriage

A blended BFA covers both the existing de facto period and an upcoming marriage in a single document. Used when a couple has been living together in a de facto relationship and is about to marry.

There's typically no additional cost for the blended structure compared to a standard BFA — it simply uses broader language to encompass both relationship types.

WA-specific risk: the Family Court Act 1997 (WA) does not contain a clause expressly stating that a de facto BFA terminates when the parties marry. In every other state and territory, legislation provides that marriage ends the de facto BFA. Because WA is missing this clause, there's an open argument that a WA blended BFA may not survive cleanly into marriage. The risk has never been tested in court.

The options for a WA de facto couple who may later marry:

1. Do only a de facto BFA now and a new BFA when and if they marry — two separate documents, safest approach.
2. Do only a pre-marriage BFA — but this gives no de facto protection before the wedding.
3. Do a blended BFA and accept the risk — noting the legislative gap.

For couples in any state other than WA, the blended BFA works cleanly because the surrounding legislation supports it.

The WA jurisdictional difference

For most of Australia, de facto family-law matters are dealt with under the federal Family Law Act 1975 (Cth) — the same legislation that governs married couples. Western Australia operates differently: WA de facto matters are dealt with under the state Family Court Act 1997 (WA).

The practical implications:

• The framework is broadly similar — contributions analysis, future needs adjustment, just-and-equitable standard, two-year threshold, two-year time limit. WA isn't a different world.
• The legislation cited in the BFA or consent orders is different — section numbers from a different Act. The substantive law is similar but the citations are jurisdiction-specific.
• The blended BFA gap exists in WA only (as above).
• WA de facto BFAs have only one original — by statute. Married couples (and de facto couples in other states) can have multiple originals; WA de facto BFAs work with one original, with the other party receiving a certified copy.

Jurisdictional reach

A WA court can only make de facto property orders if:

• The relationship was substantially in WA, or
• There is real property located in WA.

If a de facto couple's relationship had no substantial WA connection (they moved here recently, or live interstate, or have no WA property), the WA court doesn't have jurisdiction. In that case, a BFA may be a better option than consent orders, because a BFA is a private contract that doesn't depend on WA court jurisdiction.

For everyone outside WA, the Family Law Act (federal) applies and the federal Family Court hears de facto matters.

New de facto relationships after separation

Does entering a new relationship affect my old settlement?

For consent orders, the court may ask whether either party is in a new significant relationship, particularly if it's approaching de facto status. This can be relevant to future needs assessments.

For a BFA that's already executed, a new relationship generally has no impact on the agreement. The BFA continues to govern as written.

We may recommend, as a matter of transparency, notifying a new partner of the ongoing legal proceedings — particularly if the new partner is close to reaching de facto status with you. This prevents future challenges to the orders on the grounds that an interested party wasn't notified.

When should a new partner be involved or notified?

If the new partner is approaching or has reached de facto status — roughly two years of cohabitation, or shared property — it's prudent to think carefully about whether they should be aware of the financial proceedings or any BFA being signed. In some cases, formally acknowledging the new partner in the documentation prevents later challenges. This is a strategic call we'll walk through during the consultation.

Common scenarios

"We've lived together for 18 months. Are we de facto?"

Probably not yet — you're under the two-year threshold and you haven't yet hit it. Unless one of the exceptions applies (a child of the relationship, substantial contributions, a registered relationship in a state that has them), you don't yet have full de facto property rights under family law.

This means:

• A property claim by one party against the other is generally not available
• Property tends to stay with whoever holds legal title
• Each party effectively keeps what's in their name

If you're planning to stay together and want to lock in the rules before reaching the threshold, a pre-de-facto BFA is the instrument — signed before you're formally de facto, taking effect from that point.

"We've been together for 8 years but never lived together full-time. Are we de facto?"

Probably yes. As noted above, common residence is a factor but not determinative. A long relationship with the other indicators of de facto status — financial interdependence, public acknowledgment, shared lives — can satisfy the test without continuous cohabitation. The court has found de facto relationships in exactly this fact pattern.

If you want certainty about your status, a legal consultation is the way to find out. Once status is established, all the usual property-rights frameworks apply.

"We've been together for 3 years, no kids, no joint property. Are we de facto?"

Yes — you cross the two-year threshold. You have the same property and spousal-maintenance rights as a married couple under the Family Law Act. If your finances have been separate during the relationship, the property division on any separation tends to reflect that — but the framework applies.

"We're not married, no kids, separated 3 years ago, never formalised anything. Can I make a property claim now?"

You're past the 2-year window. To make a claim, you'd need leave of the court. Where joint property still needs to be sorted, leave is commonly granted. Where the parties have informally divided everything and there's nothing concrete to deal with, leave is harder to get and contested by the other party.

If there are assets still in joint names that need formal transfer, the late-filing path is workable. If the dispute is over assets the other party has held in their sole name for the last three years, it's harder.

"We split up but moved back in together. Does the two-year clock reset?"

Generally no. As discussed above, periods of de facto relationship can be accumulated, with the gap aggregated cleanly if it's short (typically under three months) and treated more carefully if it's longer. The clock doesn't strictly reset; the question is whether the separation broke the continuity of the relationship for legal purposes.

"We're a same-sex de facto couple. Do the same rules apply?"

Yes. The de facto framework is gender-neutral and applies equally to same-sex and opposite-sex couples. All the same property rights, time limits, and BFA mechanisms apply.

Bringing it together — what to do

If you're in a de facto relationship and you're thinking about your legal protections, the practical paths:

• Planning ahead (still together) — consider a BFA. Particularly useful before reaching the two-year threshold (to set the rules in writing in advance), or after a significant event (an inheritance, a property purchase, a business sale). See Planning ahead.
• Moving forward (separated) — consent orders are usually the right answer. Within the 2-year window. If consent orders aren't right for your situation (privacy, an unusual deal, spousal maintenance concerns), a post-separation BFA is the alternative. See Moving forward.
• Past the 2-year window — talk to us. The path depends on whether there's joint property still to deal with, whether the other party consents to late filing, and what the substantive deal looks like.