Costs, State Rules and 2026 Checks
De facto relationships in Australia: property settlement, super splitting and inheritance rights
When de facto couples can claim a property settlement under the Family Law Act, the 2-year deadline, the WA exception, and how de facto partners are treated in wills, intestacy and super.
De facto couples in Australia have broadly the same property rights as married couples after separation. Under Part VIIIAB of the Family Law Act 1975, a de facto partner can apply for a property settlement or super split if the relationship lasted at least 2 years, or there is a child of the relationship, or the applicant made substantial contributions and would suffer serious injustice without an order, or the relationship was registered under a state or territory law (section 90SB). The application must be made within 2 years after the relationship ended (section 44(5)), unless both parties consent or the court grants leave. Western Australia is the exception: de facto property matters there are dealt with by the Family Court of WA under the Family Court Act 1997 (WA), although super splitting for WA de facto couples is now available under Part VIIIC of the federal Act. On death, de facto partners who meet each state's definition can inherit under intestacy, make family provision claims and receive super death benefits tax-free.
General information only.
Is it a de facto relationship?
The Family Law Act (section 4AA) asks whether the couple had a relationship as a couple living together on a genuine domestic basis. The court looks at all the circumstances, including:
- how long the relationship lasted and whether they lived together
- whether there was a sexual relationship
- financial dependence or interdependence, and arrangements for financial support
- ownership, use and acquisition of property
- mutual commitment to a shared life
- whether the relationship was registered
- care and support of children
- the public aspects of the relationship (how they presented to family, friends and agencies)
No single factor is decisive. Couples can be in a de facto relationship while keeping separate finances, and a person can be in a de facto relationship while still legally married to someone else.
Relationship registers
NSW, Victoria, Queensland, SA, Tasmania and the ACT have relationship registers. Registration is strong evidence of the relationship and satisfies the Family Law Act's registered relationship gateway, avoiding the 2-year minimum. WA and the NT do not have an equivalent register. Registration also helps prove the relationship for intestacy and super purposes.
Property settlement: same steps as marriage
A de facto property case uses section 90SM, which mirrors section 79 and was amended in the same way from 10 June 2025. The court identifies property and liabilities, assesses contributions and the effect of any family violence, considers current and future circumstances, and makes an order only if it is just and equitable. The duty of disclosure applies (section 90RI). See the 2025 property changes.
| Point | Married couple | De facto couple (outside WA) |
|---|---|---|
| Law | Family Law Act Part VIII (s 79) | Family Law Act Part VIIIAB (s 90SM) |
| Threshold | Marriage | s 90SB gateway: 2 years, child, substantial contributions, or registration |
| Deadline | 12 months after divorce order takes effect | 2 years after the relationship ended |
| Super splitting | Part VIIIB | Part VIIIB |
| Private agreement | Binding financial agreement, Part VIIIA | Binding financial agreement, Part VIIIAB Div 4 |
The WA exception
Western Australia did not refer de facto property powers to the Commonwealth. A WA de facto couple's property dispute goes to the Family Court of Western Australia under the Family Court Act 1997 (WA), which has similar threshold and time-limit rules. Super could not be split for WA de facto couples until the federal Act was amended; Part VIIIC of the Family Law Act now allows splitting of superannuation for WA de facto couples, with a 2-year standard application period (section 44(7)). Check with a WA lawyer how the state and federal parts fit together in your case.
On death: wills, intestacy, family provision, super
- Wills: a de facto partner can receive anything under a will. Starting a de facto relationship does not revoke an existing will (marriage generally does).
- Intestacy: each state defines who counts. In NSW a de facto partner is a spouse for intestacy if the relationship lasted at least 2 years or there is a child. In Queensland the minimum is a continuous period of at least 2 years ending on the death (Succession Act 1981 s 5AA). Victoria and WA have their own definitions. See intestacy rules by state.
- Family provision: a de facto partner at the time of death is eligible in all four states, subject to each Act's tests. See family provision claims.
- Super: a de facto partner is a "spouse" for the SIS Act and for tax, so a death benefit lump sum is tax-free to them. The trustee may still ask for evidence of the relationship.
Ending a de facto relationship: what to do
- Record the separation date and keep evidence (moving out, telling family, separating finances).
- Calculate the 2-year deadline and diarise it with a margin.
- Update your will and super nomination, because, unlike divorce, the end of a de facto relationship may not revoke gifts to a former partner in every state.
- Exchange financial disclosure and try negotiation or family dispute resolution.
- Formalise any agreement with consent orders or a binding financial agreement. An informal handshake deal leaves both parties exposed.
Worked example (illustrative)
Priya and Tom lived together in Melbourne for 6 years and separated on 1 March 2025. They owned a house in Tom's name (equity $520,000) and Priya had $140,000 in super, Tom $90,000.
- Gateway: the relationship lasted more than 2 years.
- Deadline: application by 1 March 2027 (2 years after the relationship ended).
- Pool: $520,000 + $140,000 + $90,000 = $750,000.
- If they agree on 50/50 (each $375,000), Priya could receive $235,000 of house equity plus her $140,000 super, or the parties could adjust using a super split. The property settlement split calculator turns the percentage into dollars.
FAQ
Do we need to have lived together for 2 years?
Not always. A child of the relationship, registration, or substantial contributions with serious injustice can satisfy the gateway even for a shorter relationship.
What if we lived in different states?
The federal Act applies if a connection with a participating jurisdiction exists. If one or both lived in WA, get advice on whether WA law applies.
Is a de facto partner entitled to half?
There is no automatic half. The court uses the same steps as for married couples, and outcomes depend on contributions and future needs.
Can a de facto partner contest a will?
Yes, if they were a de facto partner at the date of death and meet the state's eligibility rules.
Sources
- Federal Register of Legislation — Family Law Act 1975, ss 4AA, 44(5), 90SB, 90SM, Part VIIIC
- Federal Circuit and Family Court of Australia — de facto property applications
- Family Court of Western Australia — WA de facto matters
- Queensland Legislation — Succession Act 1981, s 5AA
- Related: missed time limits, super splitting, overview
