Understanding de facto relationship break up entitlements [Australia]
The information on this page about de facto relationship break up entitlements in Australia has been written for people who are either on either side of a de facto relationship that is coming to an end, or has already ended.
Before explaining exactly what the de facto relationship break up entitlements are, it is important to be certain about whether your relationship is in fact, legally classified as a de facto relationship. If it isn’t legally recognised as a de facto relationship, then there is no requirement for any financial division, commonly referred to as a property settlement or financial settlement.
We’ll unpack the facts and circumstances which prove a de facto relationship existed, followed by answers to these common questions:
We also answer questions relating to the validity of a relationship being legally considered a de facto relationship, including:
- Can you be in a de facto relationship without living together?
- Can a person be in more than one de facto relationship?
So, what does Australian law say about what makes a relationship de facto?
What is a de facto relationship?
There are some well-known and lesser-known ways in which a relationship is considered a de facto relationship. Here we explain what most people know about the requirements, with additional detail about some of the lesser known “defining features” of a de facto relationship.
What is a de facto relationship in Australia?
A relationship that has the following features is considered a de facto relationship:
- If two people (of any gender) have been living together in a relationship for 2 years or longer
- If the two parties to the relationship have had a child or children together (regardless of the length of the relationship); or
- The relationship has been legally registered as a de facto relationship in a state or territory of Australia
If there is a dispute about whether the relationship is/has been de facto, then the next step is to determine whether a Court would consider that they had a relationship that reflects a shared life. The term “genuine domestic basis” is used in family law and when determining the nature of a relationship, elements considered include, but are not limited to, the following:
- The length of the relationship;
- Whether a sexual relationship existed;
- When reviewing financial transactions, there has been a cross over in living expenses
- Actions/inferences of a shared life as a couple; and
- Whether people known to them see/saw perceived them to have been a couple.
There is no single test to determine whether a relationship is de facto. The law requires us to take into account a range of factors, to get an overall picture of the relationship. This is because some de facto relationships do not meet some features, such as relationships where one or more people are FIFO workers or live and work outside of Australia for significant or extended periods of time.
Determining whether a de facto relationship existed is a “gateway provision” to a financial/ property settlement. So, if there are any disputes about de facto status, seek urgent family law advice to determine what a Court would be likely to determine in your circumstances.
Common questions about de facto relationships
Can my de facto claim my inheritance?
It is not uncommon for people to receive an “early inheritance” during a de facto relationship. For example, if someone gives them funds earlier to help with the purchase of a property or for investments. If this is the case, the “early inheritance” is usually considered part of the property pool and available for division. If the inheritance is likely to be coming soon or you have not finalised your property settlement with the Family Court, then you must seek legal advice to determine whether this could be part of the property pool. A family lawyer with experience in how inheritances are treated upon separation will ask you lots of questions to help answer this. There is no one set answer to this question as each set of circumstances vary.
Can you be in a de facto relationship without living together?
In circumstances where two people are in a relationship and they are not living together, there may be other factors which prove the two people were in a de facto relationship.
Can a married person be in a de facto relationship?
Yes, it is possible for a married person to also be in a de facto relationship.
Can a person be in more than one de facto relationship?
Yes, it is possible for people to be in more than one legally recognised de facto relationship.
How long is a de facto relationship in Australia?
A de facto relationship is not determined by the duration of the relationship alone. See this section of this page for more insights.
Is a boyfriend a de facto relationship?
A boyfriend may be considered a de facto if you have children together or meet other “genuine domestic basis” features of a de facto relationship. Learn those by reading this section here.
Is a girlriend a de facto relationship?
A girlfriend may be considered a de facto if you have children together or meet other “genuine domestic basis” features of a de facto relationship. Learn those by reading this section here.
If there is a dispute about whether the relationship is, or is not a de facto relationship, then urgent legal advice from an experienced family lawyer is essential. Proving or disproving the nature of the relationship must be managed correctly and timing is important, as you will discover below.
If you have had a de facto relationship, then your most pressing questions will usually fit into one of these two categories.
Click on the option that most reflects your current needs:
If you want to learn what your de facto may be entitled to, jump to this section here.
If you want to learn what you may be entitled to, jump to this section here.
Understanding de facto relationshop break up entitlements: What my partner may be entitled to if our relationship ends
In Australia, if a de facto relationship is proved, then the de facto relationship is treated similarly to marriages, in terms of the financial separation processes. Unless a de facto couple has kept all expenses entirely separate (which requires evidence), a property settlement is likely required. This process can commence immediately upon separation and must be filed with the Court within 2 years from the date of separation.
When a de facto relationship ends, there are processes and obligations when determining financial arrangements.
It is often the case that following the end of a de facto relationship, the parties are required to participate in a property settlement. That is, consideration of all assets, liabilities, financial resources, contributions, current and future circumstances. This process can be complex and every situation is different. To determine what your partner may be entitled to, it is essential to obtain legal advice from a specialist family lawyer.
Finances and de facto relationship separation entitlements
De facto relationship separation entitlements may include the following:
- Spousal maintenance – short-term or long-term financial support if your former partner is unable to financially support themselves.
- Child support – while technically not an entitlement for your ex partner, this is a financial component that ties into parenting agreements.
- Property/Asset split – as per the terms of a negotiated Agreement, or a Court’s decision.
De facto spousal maintenance
De facto spousal maintenance may be sought by your former de facto partner on a short-term basis or longer-term.
De facto spousal maintenance may be payable in circumstances where:
- your former de facto partner is unable to afford basic living expenses in the short term (including until the Property Settlement is finalised);
- your former de facto partner has a disability or significant health issues that means they do not have the financial means to afford basic living expenses;
- the de facto relationship was of significant length (15+ years) and your former partner has a significantly disparate earning capacity;
- your former partner has limited earning capacity due to them having ongoing, primary care of a child/children; or
- a return to the workforce may not be possible immediately (e.g. until skills can be acquired for employment, until a child is of school age).
Short-term Orders are called Urgent Maintenance Orders or Interim (Temporary) Maintenance Orders. Your financial capacity to pay de facto spousal maintenance will be taken into account. Some terms may be able to be negotiated, such as the maintenance being required to cease upon them entering into a marriage or a new de facto relationship.
De facto spousal maintenance may be payable periodically or in a lump sum.
Long-term de facto spousal maintenance may stand alone, alongside Property Settlement Orders, but most times it is considered within the Property Settlement Agreement. The property settlement process includes consideration of financial and non-financial contributions as well as any potential “future needs” (which addresses their ability to financially support themselves) at that stage of the negotiation/determination process.
Child support
Child support payments are separate from the Property Settlement process. As mentioned above, Child Support is not to be considered a de facto relationship entitlement, however it is a financial component that may come into play if you have children.
While parents have a legal responsibility to financially support their children, child support in a formal sense is not always required.
If child support is payable, it can be determined by Services Australia or negotiated privately with a Limited Child Support Agreement or a Binding Child Support Agreement.
Seek advice from an experienced family lawyer to determine what you may need to pay if you have children, and whether a Child Support Agreement will be best for your circumstances.
Property Settlement
Many times people believe their property settlement is completed and behind them, moving forward with their life, investments and business interests only to discover later that their former partner is legally permitted to start the process over again, seeking additional funds.
This is far more common than people realise and is possible when:
They did not get experienced family law advice before negotiating the terms of the agreement
The Agreement was not filed with the Court and turned into Property Orders (making it final and legally binding).
The property settlement process includes looking at all assets, liabilities, financial resources, contributions, and the current and future circumstances of your relationship. Any dependent children you had together is also taken into account. As part of this process, you and your former partner are required to provide each other Financial Disclosure.
Both yourself and your former de facto partner are to compile your own list of assets and liabilities, and exchange documents to verify all of those matters. This must also take into account any other financial resources that may be available to either of you. Then, your family lawyer will help determine the weight attributable to your respective contributions to the relationship and assess any “current and future circumstances” factors that may need to be considered in that process.
Property / Assets includes real estate, cash, investments, vehicles, superannuation, jewellery, art, etc and can include an interest in a trust depending on the nature of the interest.
Liabilities include debts that each party has individually or together. This includes personal debt, combined debt and business debt/loans.
Financial Resources includes income/salary and may also include gifts, inheritances, regular financial contributions from family members, interests in trusts, etc.
Future Needs are any additional financial considerations of what you, your former partner, and any dependent children you have, may require in the future.
Your property pool can significantly diminish (or increase) over time. It is wise to get the property settlement process underway early and complete it sooner rather than later. That way, you can move forward with your life and minimise any interruptions or impacts on future financial gains and business activities.
At this point it is worth mentioning that hiding or “giving away” of assets or financial resources will be discovered. The consequences of not providing full and frank financial disclosure are significant. And, early, expert legal advice from a family lawyer is essential to avoid any common missteps people make when hoping to preserve assets or have fears about how much their former partner will “get”.
The only way to gain clarity about what is likely, and what, if anything, will save you from having to pay more than is necessary, is by seeking expert legal advice.
Other common questions we are asked about de facto property entitlements
Can a de facto take my superannuation?
Superannuation of yours and your former partner is considered an asset, making it part of the property pool. If the outcome of your Property Settlement Agreement requires a payout that cannot be fulfilled through payment in other ways, superannuation may be payable.
That being said, superannuation is not intended to be drawn upon until retirement (or other terms) so if to fulfil the requirements of the final division, superannuation splitting is required, funds are transferred rather than being paid out.
Can my de facto take my house?
Whether your de facto can take your house in your financial separation, will depend on numerous factors. To learn how property and assets are split upon the end of a de facto relationship, read this explainer above.
How the property pool is ultimately divided can be affected by the quality of legal advice you seek. Even if you have already come to an agreement between yourselves, having a family lawyer review the agreement will flag any issues you may not be aware of, and gives you the option to make amendments to the terms of the agreement, before signing off on it.
De facto separation break up entitlements: What are you entitled to in a de facto relationship?
De facto relationship break up entitlements in Australia will vary based on the unique circumstances of each couple, however, understanding possible entitlements can make a significant impact on your future post-separation.
Upon separation, you will both be required to go through a process known as financial disclosure. That is, determining the current state of your asset pool, including any debts you have individually or together.
In Australian law, a de facto relationship is treated just the same as a marriage when it comes to the financial separation component. The only key difference relates to timing of finalising the property settlement. De facto relationships have two years from the date of separation to file the Property Settlement Agreement with the Court. If you are unable to come to an agreement, mediation will be required to minimise the need to go to Court to have a decision made for you.
Your de facto relationship separation break up entitlements
When people speak of what they might be entitled to upon a relationship coming to an end, they are usually wanting to understand what they will end up with by the end of the whole process that will impact their day to day living as well as their bigger-picture financial position.
Below we explain three key areas that relate to what you may “walk away with” by the end of the de facto separation processes. De facto relationship separation entitlements payable to you may include the following:
Financial maintenance – short-term or long-term financial support.
Child support – while technically not an entitlement for you, this is a financial component that may be payable by one parent to another to assist with covering basic living costs relating to children.
Property Settlement – what you and your former partner negotiate you each “walk away with” as part of your Property Settlement Agreement, or if you cannot reach an agreement, the Court’s decision.
De facto spousal maintenance
If you do not have the ability to financially support yourself upon the end of the relationship, you may be entitled to de facto maintenance (typically referred to as spousal maintenance), either temporarily until you can financially support yourself or longer term. It is payable by your former partner in periodic payments or a lump sum.
Importantly, de facto maintenance in any capacity is not an automatic entitlement.
There are a number of factors that determine whether you may be eligible to receive short-term or longer-term maintenance. They include:
- If you cannot afford your basic living expenses from separation until your property settlement is finalised;
- If you have a disability or significant health issues that impact your ability to earn money to pay for your living expenses;
- If your de facto relationship was of a significant length. E.g. 15 or more years and your earning capacity is significantly lower than your former partner;
- If you have ongoing and primary care of children that limits your ability to earn an income / enough to support basic living expenses; and
- If you are the primary carer of children until such time that the child is of school age and you can return to employment.
Whether you or your former partner can afford to pay de facto maintenance will need to be determined. If there are doubts as to whether your former partner can pay child support, seek advice from a family lawyer about your next steps. If assets or money is being hidden to avoid paying child support, this can be discovered.
Child support
While not an entitlement of de facto separation, child support may be payable from one parent to the other to cover the basic day-to-day living expenses of any children of the relationship.
If additional child related expenses are to be maintained that fall outside of basic living expenses – such as private health insurance, significant health or medical specialist needs, or there is a desire to ensure costs are met for children to continue with private schooling or extra curricular activities – these can be documented in a Private Child Support Agreement.
A private Child Support Agreement can offer certainty of payment to maintain children’s health, medical, personal and extra-curricular needs until 18 years of age, or longer based on the individual needs of each child or an agreed term (e.g. until your child’s university degree is completed). These types of Agreements must be drafted by a family lawyer and filed with the Court to be turned into Orders, making the agreement legally binding.
Property Settlement
The consideration of how any assets and liabilities are to be shared between you both is known as the property settlement process. This starts with financial disclosure. This is where both parties detail all assets, financial resources and liabilities, both personal or shared, to get a complete picture of the property pool.
Assets disclosure includes any property, cash/ savings, superannuation, real estate, shares and other tangible and intangible (e.g. cryptocurrency) items of value, either in Australia or overseas.
Financial Resources can include the disclosure of any regular financial contributions from family members (including gifts and early/impending inheritances) as well as beneficial interests in trusts.
Liabilities include any home mortgages, other loans, credit card debt, ATO liabilities or any other personal, business or combined debt.
Contributions are assessed at the outset of the relationship, during the relationship and post separation.
Current and Future Circumstances are considerations based on what you, your former partner, and any dependent children you have are currently dealing with, or may deal with in the future.
De facto relationship break up entitlements & drawing a line in the sand
When de facto relationship break up entitlements are not truly finalised
If coming to an agreement without the involvement of lawyers or approval by the Court is something one or both of you are set on, know that you put yourself at a genuine risk having to go through the same process, again. This is because if one party wants to contest the terms of your agreement later on, they may be successful.
We have seen what this does to people a year or two later on. They have moved on with their lives only to have it need to go on pause and the renegotiation process to start over again. This time involving lawyers more than if they had the agreement reviewed earlier on.
As family lawyers, our expertise is in being alert to the possible risks, issues and benefits that may be present at any point in time, including your financial future. Any decisions made about the terms of the Agreement however, are always yours.
Upon filing the Property Settlement Agreement with the Court, and the subsequent confirmation from the Court allowing the Agreement to be turned into Consent Orders means that you both can have certainty that your Agreement is the true end to the financial separation.
Timing is key
The terms of your property agreement must be determined based on the property pool at the point in time you are making your agreement, not based on the asset pool at the date of separation.
You have two years from the date of separation to finalise your property settlement. Drawing a line in the sand on finances and the property split sooner rather than later is wise.
In our experience of working with separating couples, delaying the property settlement typically creates additional personal and financial issues for both parties.
Our family lawyers provide pre-separation and post-separation advice for both sides of de facto relationship matters.
To make an appointment with one of our family lawyers, click here or, to learn more about how we help people in de facto relationships, visit this page.
Disclaimer: The information in this article is general in nature and is not a substitute for independent legal advice from a family lawyer.
This information is correct as of the date of publishing and is relevant for people in these states and territories of Australia – ACT, New South Wales, Queensland, Victoria, Tasmania, Northern Territory and South Australia.
