Defacto Couples

23 Feb 2011 - Property 

Property Proceedings in The Family Law Courts

Amendments to the Family Law Act commenced on 5th December 2008, enabling unmarried couples to seek resolution of property disputes in the Family Court of Australia and Federal Magistrates Court of Australia tamiflu dosing.

The Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 came into force on 5 December 2008. This Act creates a new Part VIIIAB of the Family Law Act and amends a number of other related Acts. Financial matters arising out of separation of de-facto couples can now be resolved in a Court exercising jurisdiction under the Family Law Act.

What is a “de facto” relationship?

A person is in a de facto relationship with another person if the persons are not legally married to each other, they are not otherwise related by family, and having regard to all of the circumstances of their relationship, they have a relationship as a couple living together on a genuine domestic basis.

A de facto relationship can be between members of the opposite sex or members of the same sex.

The circumstances of the relationship may include the duration of the relationship, common residence, a sexual relationship, financial interdependence, care and support of children, and public reputation (s. 4AA). There is no threshold requirement of cohabitation.

This is a broad test.  In the context of child abduction proceedings, the Full Court of the Family Court has interpreted similar (New Zealand) provisions widely.

A Court may make an order or declaration if the Court is satisfied that the period, or the total of the periods, of the de-facto relationship is at least two (2) years, or there is a child of the de-facto relationship, or if failure to make the order or declaration would result in serious injustice to the applicant (s. 90SB).

Orders that can be made

The Court may make such orders as it considers proper for the maintenance of a party (s. 90SE (1), for a declaration of an interest in property (s. 90SL (1)) and for alteration of property interests (s.90SM (1)). Part VIIIB (Superannuation Interests) is extended to apply to a de-facto relationship.

Third parties may be included in de facto property proceedings (in a similar way to the existing Part VIIIA).
The Court may make an order or declaration about the existence or otherwise of a de facto relationship (s.90RD).

Time Limits

Proceedings must be commenced within the standard application period, which is defined as two (2) years from the date of separation. Leave may be granted for a party to apply after the end of the standard application period, if hardship is established.

Participating Jurisdictions

Not all States have referred power to the Commonwealth. For parties to be eligible to apply, they must be ordinarily resident in a participating jurisdiction. Presently, this includes all States and Territories except South Australia and Western Australia.

If the parties are ordinarily resident in these States, then the laws of those respective States still apply.
In Queensland the Family Law Act will apply to the exclusion of Part 19 the Property Law Act 1974 (Qld). Queensland Courts will have no jurisdiction. (s.90RC).

For a Court to have power to make orders for alteration of property interests and for maintenance of a party, then either or both of the parties to the de facto relationship must meet the geographical requirement.

The requirement is that either or both of the parties were ordinarily resident in a participating jurisdiction when the application for the declaration or order was made (or when they separated), and both parties were ordinarily resident in that jurisdiction during at least a third of the de facto relationship.

There is an exception to this rule if the applicant for the declaration or order made substantial contributions in a participating jurisdiction (s.90SK; 90SD).


Financial Agreements can be made before, during and after the de-facto relationship (s90UB, 90UC, 90UD). Financial Agreements are binding if the requirements in s. 90UJ are met. Those requirements are precisely the same as those for Binding Financial Agreements for Married couples.

Agreements can be set aside (in the same way as present Binding Financial Agreements). A Court will apply a strict interpretive approach and strict compliance requirements should be applied.  Failure to comply with the requirements will result in the agreement being set aside.

Recognized Cohabitation and Separation Agreements made under Part 19 Property Law Act (prior to the commencement date) remain binding provided that a State Court could not make an order that is inconsistent with the agreement.

Parties separated prior to commencement

Parties to a de facto relationship that broke down before commencement may choose for the new provisions to apply.  Such a choice can be made if (a) no final order in respect of the property or financial resources of the de-facto parties, (b) no Recognized Agreement made pursuant to Part 19 Property Law Act (Qld) has been entered into, or (c) that such an agreement has been entered into but ceased to have effect without any property being distributed or maintenance being paid.

The choice must be made in writing, signed by both of the parties to the de facto relationship, and each of the parties was provided with independent legal advice and there is a certificate evidencing such advice.
There are no provisions in the Family Law Act that could enable a State Court to compel a party to ‘opt-in’.  If proceedings have commenced (and provided the time limitation has not yet expired) both parties could agree to discontinue the State Court proceedings and re-commence in the Family Court or Federal Magistrates Court.

Key differences

Where parties have separated after the commencement date, recognized separation agreements under the Property Law Act will be ineffective. The only options are to either prepare an agreement that meets the requirements of the Family Law Act, or by way of consent order pursuant to the Family Law Rules.

If a recognized agreement is in existence, at least in Queensland, it will not have been able to deal with the maintenance of a party, or parties, to the de facto relationship. Fresh agreements might be required to cover the possibility of a maintenance claim.

If the time limit has not yet expired, spousal maintenance claims might be able to be made even where there is a final division of property. In any event, a Court may make such orders for maintenance of a party, including lump sum orders, and orders for transfer of property to meet a maintenance liability, as it may consider appropriate.

Superannuation will be treated as property, and can now be split, either by agreement or by Court order. The full range of options previously available to Married couples can now be used, including provision of fixed based amounts, percentage splits, and splits during the payment phase. This includes self-managed superannuation funds.  Orders can now be made binding on Third parties.

The Jurisdiction of the Courts in Bankruptcy will be able to be utilized.

Most importantly, parties will have access to the Rules and Procedures of the Family Court of Australia and Federal Magistrates Court of Australia, with the benefit of individualized case management, early intervention dispute resolution processes and pre-action proceedings (for applications to the Family Court of Australia).

De facto couples with both parenting and property disputes will be able to have all matters determined in one Court. In most cases, this will mean a significant cost saving for litigants.

Further information

To assist in interpretation of the amendments, the explanatory memorandum to the Bill (as it was), and the Bill digest are both available on the Australian Parliament website


10 responses to “Defacto Couples”

  1. Jody says:

    My ex is refusing to sign the viiiab financial agreement after the sale of our home .

    • Journey Family Lawyers says:

      Hi Jody,

      Are the sale proceeds from the house being held securely? If not you may want to take some steps to ensure they are not dissipated.

      If your ex won’t sign the Financial Agreement then you have no agreement. You should consider applying to Court for Orders.

  2. John says:

    Needing advice, I am currently in a domestic relationship with a woman since December 2011, no children together. When I first moved in with her she was the mortgagee but she sold that house 7 months later and we bought the one we reside in now to this date.
    After purchasing the new residence ($385,000) we had a mortgage of $40,000 which I paid out with my money, I also gave a one off payment of $25,000. I paid for overseas holidays out of my money which equates to around approximately $60,000. I have also spent 1,000’s of dollars around the property improving it.
    I am basically wondering where do I stand legally as I want to leave this relationship. Am I entitled to 50% of the property which is worth $500,000 as of last value??
    Hoping you can advise me please on my options legally


    • Journey Family Lawyers says:

      Hi John,
      There are no automatic rules about 50% / 50% splits, whether you were a de facto or married. The court will take into account the financial contributions each of you has made and a range of other factors when decision what percentage each of you should get of the net property pool, more so for shorter relationships than longer relationships. When you leave you should try to get a lawyer to write to her to and try to agree a property settlement, particularly as there is domestic violence in your relationship.

  3. Belinda says:

    Hi there ,
    My partner is currently going through settlement proceedings and is self representing. I will give you a basic run down of the history.
    He and his ex were together for 10 years on and off , during the course of that time she was on a sole parents pension , so had her own income as well as access to his bank account ( which is evident in his statements) she left in May of 2014 due to having an illicit substance addiction in February of 2015 she placed a caveat on the property. I am wondering due to her having her own income and access to his bank account , but not paying any loan repayments or bills from her own income ( also evident in his statements) will she get the 100% profit from sale she is attempting to acquire ?
    He and I have been in a relationship for 2 years and did see each other in 2013 during one of her off again episodes, I have 4 children and they are dependents of us both, he and his ex have 3 children. Just wondering what the possible outcome might be and if she is still using drugs does it impact the outcome?
    Any advice or assistance will be much appreciated
    Thank you

    • Client says:

      Hi Belinda,
      Those factors are relevant but we would need to speak to your partner in detail before giving specific advice. It sounds like he could benefit from our Initial Consultations, these are a one-off appointment of up to an hour which give enough time to talk to him in detail, walk him through the process used by the court for property settlement and give him some specific advice as to his entitlement and options. Substance misuse will not strictly affect property settlement unless it impacts on finances, your partner will probably want to sort out the property settlement before it get’s to that stage though. On a side note, your partner might also want to talk to his bank about stopping her access to his account.

  4. Anne says:

    A friend of mines partner is declaring herself bankrupt,
    They have been living in a de facto relationship.
    Can he be held accountable for her debt.

    • Journey Family Lawyers says:

      Hi Anne,

      Bankruptcy is a separate area of law in it’s own right. If your friend and his partner separate then the trustee in bankruptcy is likely to become involved as they will be looking to obtain any assets your friend’s partner might be entitled to in order to meet her debts. If your friend and his partner do not separate then it is a straight bankruptcy matter. Your friend might get some advice from a specialist in that area and perhaps look at protecting himself financially in future.

  5. Nik says:

    I need some advice. A friend of mine is in trouble. He split up with his parnter of 16 years (2 children) 29 months ago. She left him and took the children. He pays all required child support and she left with everything including the car. They still have a house together. He has always paid the repayments on this house from his personal bank account. They have spent the last 12 months or so with solicitors. He offered to sign the house over to her for no money. She declined. He wants the house sold and split the profit (which is not alot) she declined. So now he is stuck with a mortgage he is just coping to pay for and he just wants it gone. He doesnt have the money to pay her out but he doesnt want the house either. Is she allowed to do this to him. He is paying all the bills for the home and child support and is struggling to survive. She refuses to go to the solicitors to sort this out. What should he do? He can’t keep doing this.

    • Lynette says:

      Hi Nik, it is nice of you to care about your friend. This sort of thing happens a lot, where one party just won’t or can’t move on to finality. Fortunateky the Family Law Courts operate so that one person can bring matters to a head even if the other party refuses to co-operate. If your frind applies to the court , it still may6 be some time before he gets a hearing, so he should do so and get the ball rolling. If he reaches anb agreement after he has filed court documents, then the Court proceedings can be finalised with consent orders. I find there isnot much difference in cost between long winded and one sided negotiations such as you describe and actually doing the court documents and filing in the Court. At least then if she doesn’t reply, you can et the Court to look at it and possibly make orders for what you are asking the other party to agree to. Hope this helps,

      kind regards Lynette

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