De facto couples in Victoria have the same property settlement rights as married couples, using the same four-step process, but the time limit is different: generally 2 years from the date of final separation, rather than 12 months from a divorce order. Whether a relationship legally counts as "de facto" is assessed on the facts, not a fixed rule.
Introduction: De Facto Couples Have Real Property Rights
A common misconception is that unmarried couples have no legal claim to property when they separate. Under the Family Law Act 1975 (Cth), that isn't correct. If your relationship meets the legal definition of "de facto," you have the same right to seek a property settlement as a married couple, assessed under the same principles.
What Counts as a De Facto Relationship
Section 4AA of the Family Law Act defines a de facto relationship as two people, of the same or opposite sex, who are not married or related by family, living together on a genuine domestic basis. Victoria's Relationships Act 2008 sets out substantially the same test for state purposes.
There is no single factor that decides the question, and the Act does not set a fixed minimum length of time a couple must have been together. Instead, courts weigh the relationship as a whole, including:
- The duration of the relationship
- Whether the couple lived together, and for how long
- The degree of financial dependence or interdependence between the parties
- Ownership, use, and acquisition of property
- The degree of mutual commitment to a shared life
- Whether the relationship was publicly known and how the couple presented themselves to others
Because this is assessed on the facts, two people can disagree about whether a relationship was legally "de facto" at all, and that question sometimes needs to be resolved before property settlement can proceed.
How Long Do You Have to Apply After Separation?
For de facto couples, the time limit to apply for property settlement is generally 2 years from the date of final separation. This is different from married couples, who generally have 12 months from the date their divorce order takes effect. After the 2-year limit passes, you generally need the court's permission to apply late.
How Assets Are Divided
Once a relationship is established as de facto, the same four-step process used for married couples applies: identifying and valuing the asset pool, assessing each party's contributions, considering future needs, and checking the outcome is just and equitable. There is no separate or lesser framework for de facto couples once de facto status is established.
Why Early Legal Advice Matters
Because de facto status can itself be contested, and the time limit runs from separation rather than from a court process like divorce, it's easy for the 2-year deadline to pass without either party realising it's approaching. Getting advice early helps you understand whether your relationship meets the legal definition, what's likely to be in the asset pool, and what your options are before time runs out.
Frequently Asked Questions
1. How is a de facto relationship different from marriage for property settlement?
The legal process the court applies is the same four-step approach used for married couples, but the time limit is different: 2 years from the date of final separation, rather than 12 months from a divorce order.
2. How long do we need to have lived together to be considered de facto?
There is no fixed minimum duration written into the Family Law Act. Courts weigh the relationship as a whole, including duration, cohabitation, financial interdependence, and public commitment, rather than applying a strict cut-off.
3. What is the time limit to apply for de facto property settlement?
Generally 2 years from the date the de facto relationship ended. After that, you need the court's permission to apply late.
4. Do same-sex de facto couples have the same property settlement rights?
Yes. The Family Law Act's definition of a de facto relationship applies equally to same-sex and opposite-sex couples.