De facto relationships property rights Australia 2026 — Part VIIIAB framework, the two-year threshold, and what de facto couples need to know

At a glance — de facto property rights in Australia 2026

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What property rights do de facto couples have in Australia 2026?

De facto couples in Australia have substantially the same property rights as married couples under Part VIIIAB of the Family Law Act 1975 (Cth). Property settlement is governed by section 90SM (the de facto equivalent of section 79 for married couples), applying the same four-step process: identify the property pool, assess contributions, assess future needs under section 75(2), determine just and equitable outcome. The same Federal Circuit and Family Court of Australia hears both married and de facto matters under the same procedure. The key differences are: (1) a threshold question — was the relationship a "de facto relationship" for legal purposes; (2) a different time limit — 24 months from the end of the relationship under section 44(5) compared with 12 months from divorce for married couples; and (3) some specific evidentiary requirements about the existence and duration of the relationship. Same-sex couples are covered on the same basis since 2009 amendments. Registered relationships under the Relationships Act 2008 (Vic) provide additional evidence of the relationship but aren't required. Property transfers between separating de facto partners under consent orders or BFA qualify for the same section 44 Duties Act 2000 (Vic) stamp duty exemption. This guide is for de facto couples separating and trying to understand their legal position.

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What is a "de facto relationship" under the Family Law Act?

Section 4AA of the Family Law Act 1975 defines a de facto relationship.

Core elements:

The persons are not legally married AND are not related by family, AND having regard to all the circumstances, they have a relationship as a couple living together on a genuine domestic basis.

Factors under section 4AA(2):

The court considers:

• Duration of the relationship
• Nature and extent of common residence
• Whether a sexual relationship exists
• Degree of financial dependence or interdependence
• Ownership, use, and acquisition of property
• Degree of mutual commitment to a shared life
• Whether the relationship is registered under a State or Territory law
• Care and support of children
• Reputation and public aspects of the relationship

Same-sex relationships:

Section 4AA(5) confirms that a de facto relationship can exist between two persons of the same sex. Same-sex couples have had equal access to de facto property orders since 2009.

Multiple relationships:

A person can be in a de facto relationship while still married to someone else (section 4AA(5)(b)). This sometimes arises in matters with overlapping relationships.

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What's the threshold for property orders?

For the Federal Circuit and Family Court to make property orders under section 90SM, certain threshold requirements must be met under section 90SB.

Section 90SB threshold tests — at least one of:

(a) Two years cohabitation: The relationship has been at least 2 years in total

(b) Child of the relationship: There is a child of the de facto relationship

(c) Substantial contributions / serious injustice: A party has made substantial contributions and failure to make property orders would result in serious injustice

(d) Registered relationship: The relationship is registered under a State or Territory law (such as the Relationships Act 2008 (Vic))

In practice:

• Most matters meet the 2-year threshold straightforwardly
• Where there's a child of the relationship, duration doesn't matter
• The "substantial contributions / serious injustice" threshold is reserved for shorter relationships with substantial circumstances
• Registered relationships in Victoria, ACT, NSW, Tasmania, Queensland, and SA satisfy the threshold

What if the threshold isn't met?

If none of the section 90SB tests is satisfied, the Family Law Act doesn't apply to the property dispute. Other remedies may apply (e.g. equitable claims for constructive trust, contractual claims, or other State or Territory legislation). These are usually less favourable than Family Law Act remedies.

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How is de facto property settlement different from married property settlement?

The substantive framework is substantially the same. The key differences:

Substantive outcomes:

The four-step process under section 90SM is the same as section 79. The court considers:

1. Identify and value the property pool
2. Assess contributions
3. Assess future needs under section 75(2)
4. Determine just and equitable outcome

In most respects, de facto and married property settlements look the same.

The "duration discount" myth:

A common misconception is that de facto property settlements automatically result in less to the lower-earning party because the relationship was "shorter." This isn't quite right. The court considers all circumstances. A 5-year de facto relationship with substantial contributions can produce outcomes similar to a 5-year marriage. Where the de facto relationship is shorter (e.g. 2-3 years) and contributions are clearly weighted to one party, outcomes may reflect that — but this is true of short marriages as well.

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What about the 24-month time limit?

Under section 44(5), de facto property settlement applications must be made within 24 months of the end of the relationship.

When does the "end of the relationship" date apply?

The end of the de facto relationship is the factual date the relationship ended. Unlike marriages (where divorce provides a definite endpoint), de facto relationships end when they end as a matter of fact.

Practical implications:

• Document the date the relationship ended (text messages, emails, communications confirming the separation)
• The 24-month clock starts immediately on separation
• Don't delay property settlement — many de facto matters miss the deadline because of delay

After the 24-month deadline:

Leave of the court is required under section 44(6). Leave isn't guaranteed — the court considers whether the delay was reasonable, whether hardship would result if leave wasn't granted, and other factors.

Compared with married couples:

Married couples have 12 months from the divorce order, but they often don't apply for divorce immediately, which can extend the practical timeline substantially. De facto couples are on a shorter, more rigid timeline.

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What about Binding Financial Agreements?

De facto couples can enter Binding Financial Agreements under sections 90UA-90UN of the Family Law Act 1975 — the de facto equivalent of the section 90B-90KA framework for married couples.

Types of de facto BFAs:

• Section 90UB BFA — Before the de facto relationship begins (de facto pre-nup)
• Section 90UC BFA — During the de facto relationship
• Section 90UD BFA — After the de facto relationship ends

Validity requirements:

Under section 90UJ, BFAs require:

• Both parties to sign
• Independent legal advice for each party from a legal practitioner
• Statement of independent legal advice from each lawyer
• Compliance with formality requirements

Set-aside grounds:

Section 90UM lists set-aside grounds — broadly similar to section 90K for married BFAs (fraud, duress, unconscionable conduct, material change in circumstances, non-disclosure).

Cost:

Same as married BFAs at Fogarty Oliver Rothschild — $4,400 straightforward to $9,900 complex per party. Both parties need independent legal advice.

See Binding Financial Agreement cost guide →

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What about registered relationships in Victoria?

Victoria has had a registered relationships scheme since 2008 under the Relationships Act 2008 (Vic).

Key features:

• Couples can register their relationship with Births Deaths and Marriages
• Registration provides official evidence of the relationship
• Available to same-sex and opposite-sex couples
• No residency requirement for registration

Effect for family law purposes:

• A registered relationship satisfies the section 90SB(d) threshold test for property orders
• The relationship is presumed to be de facto from the date of registration
• Provides clear evidence of the relationship's existence and duration

Practical implications:

• Most de facto couples don't register their relationship
• Registration becomes relevant primarily when proving the relationship is contested
• For couples with substantial assets, registration provides certainty
• Other States have similar (though not identical) registration schemes

Caveat:

Registration is evidence of a relationship; it doesn't determine all questions about the relationship. The court still considers the section 4AA factors when assessing the relationship's nature.

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What about same-sex couples?

The Family Law Act 1975 has applied equally to same-sex de facto couples since 2009 amendments (with property orders available from 1 March 2009).

Same legal framework:

• Section 90SM property settlement
• Section 4AA recognition (section 4AA(5) confirms same-sex relationships covered)
• Section 90SB thresholds
• Section 44(5) 24-month time limit
• Section 90UA-90UN BFA framework
• Section 44 Duties Act 2000 (Vic) stamp duty exemption

Marriage equality (2017):

The Marriage Amendment (Definition and Religious Freedoms) Act 2017 made same-sex marriage legal in Australia. Same-sex couples can now choose to:

• Marry (and use the Part VIII married framework)
• Remain de facto (and use the Part VIIIAB framework)

For couples who were in a long-term same-sex de facto relationship and then married, the relationship duration includes both the de facto and married periods for property settlement purposes.

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What about parenting matters for de facto couples?

Parenting matters for de facto couples are handled identically to married couples. The same sections of the Family Law Act 1975 apply:

• Section 60CA — best interests of the child
• Section 60CC — primary and additional considerations
• Section 60I — mediation requirement
• Section 65DAA — variation of orders

There is no distinction for parenting purposes between married and de facto parents.

See custody and parenting lawyer cost guide →

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What goes wrong in de facto property settlement?

The relationship not recognised. A 2024 matter where a couple had lived together "on and off" for 5 years. When the relationship ended, one party applied for property orders. The other party disputed the existence of a de facto relationship, arguing they hadn't been "living together on a genuine domestic basis" because of the on-off pattern. Threshold proceedings under section 4AA preceded the substantive property settlement — 8 months of additional proceedings, $30,000+ in extra costs. Earlier registration of the relationship under the Relationships Act 2008 (Vic) would have removed the threshold dispute.

The 24-month deadline missed. A 2025 matter where a de facto couple separated in 2022. The lower-earning party (wife of 6 years de facto) didn't seek legal advice promptly. By the time she did in late 2024, the section 44(5) deadline had passed. Leave proceedings were required — substantial additional cost and uncertainty. Earlier action would have avoided this entirely.

The informal asset transfer post-separation. A 2024 matter where a de facto couple transferred a jointly-owned investment property to one party informally after separation. Section 44 Duties Act 2000 (Vic) exemption didn't apply (no consent orders or BFA). Full stamp duty was payable — approximately $46,000 on the $850,000 property. Consent orders cost $2,750 would have saved $43,000 net.

(Client names withheld. Identifying details modified.)

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What does de facto property settlement cost at Fogarty Oliver Rothschild?

Same as married couples — the work and pricing structure are equivalent.

See full pricing → Fixed-fee packages

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Frequently asked questions

Do de facto couples have property rights in Australia?

Yes. Part VIIIAB of the Family Law Act 1975 provides de facto couples with substantially the same property rights as married couples. The same four-step process under section 90SM applies.

Do you need to be together 2 years for de facto property rights?

Section 90SB sets the threshold for property orders. The most common threshold is 2 years cohabitation, but property orders are also available where there's a child of the relationship, substantial contributions giving rise to serious injustice, or a registered relationship.

What's the time limit for de facto property settlement?

24 months from the end of the relationship under section 44(5). After the deadline, leave of the court is required.

Are same-sex de facto couples covered?

Yes. Section 4AA(5) confirms same-sex relationships are covered. The Family Law Act has applied equally to same-sex de facto couples since 2009.

Does the same court hear de facto matters?

Yes. The Federal Circuit and Family Court of Australia hears both married and de facto family law matters under the same procedure.

Is de facto property settlement cheaper than married?

Generally similar costs. The substantive work is equivalent. Threshold disputes (where the existence of the de facto relationship is contested) can add cost in some cases.

Can de facto couples make Binding Financial Agreements?

Yes — under sections 90UA-90UN of the Family Law Act 1975. Same framework and validity requirements as married BFAs. Same cost range at Fogarty Oliver Rothschild.

Does the stamp duty exemption apply to de facto transfers?

Yes. Section 44 of the Duties Act 2000 (Vic) exempts transfers between separating de facto partners pursuant to consent orders, BFA, or court order — same as for married couples.

What about registered relationships in Victoria?

Couples can register under the Relationships Act 2008 (Vic). Registration satisfies the section 90SB(d) threshold for property orders and provides clear evidence of the relationship. Most de facto couples don't register; registration becomes important primarily when proving the relationship is contested.

Do we need a registered relationship to have property rights?

No. Most de facto couples don't register. As long as the section 90SB threshold is met (typically 2 years cohabitation or a child of the relationship), property orders are available.

Can superannuation be split for de facto couples?

Yes. Part VIIIB of the Family Law Act 1975 applies equally to de facto couples. Superannuation splitting can be effected through consent orders, BFA, or court order.

What about parenting matters for de facto couples?

Parenting matters are handled identically to married couples. The same sections of the Family Law Act 1975 apply (section 60CA best interests, section 60CC considerations, section 60I mediation requirement).

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