De Facto Relationships in Australia: Rights and Time Limits

A de facto relationship in Australia is defined by section 4AA of the Family Law Act 1975 as a couple living together on a genuine domestic basis. De facto partners generally have 2 years from the end of the relationship, far shorter than married couples' 12 months from a divorce order, to apply for property or maintenance orders.

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Western Australia is different for de facto financial matters. Western Australia did not refer de facto property and financial matters to the Commonwealth, so the federal Part VIIIAB provisions described on this page do not govern a de facto property or maintenance claim in Western Australia. Those claims run under the Family Court Act 1997 (WA), which has its own provisions and its own thresholds, including a two-year relationship requirement under section 205Z and declarations of property interests under section 205ZA. If your de facto matter is in Western Australia, work from that Act and not the section numbers used here. Married couples in Western Australia remain under the federal Family Law Act 1975.

This article addresses de facto relationships and the financial remedies available under Part VIIIAB of the Family Law Act 1975. It does not address state or territory relationship registration schemes themselves, which are a separate, optional process available through each state or territory's registry of births, deaths and marriages, or family violence protection orders, which are made under state and territory law.

How the Act defines a de facto relationship

Section 4AA of the Family Law Act 1975 defines a de facto relationship as one between two people who are not married to each other, are not related by family, and who, having regard to all the circumstances of their relationship, have a relationship as a couple living together on a genuine domestic basis. Section 4AA(2) lists a broad, non-exhaustive set of factors the court may consider: the duration of the relationship; the nature and extent of common residence; whether a sexual relationship exists; the degree of financial dependence or interdependence between the parties; the ownership, use and acquisition of property; the degree of mutual commitment to a shared life; whether the relationship is or was registered under a state or territory relationship registration scheme; the care and support of children; and the reputation and public aspects of the relationship. Section 4AA(3) makes clear that no single factor is necessary before a court can find a de facto relationship exists, so a relationship missing one or more of these features can still qualify.

De facto status does not depend on gender or exclusivity

Section 4AA(5) confirms that a de facto relationship can exist between two people of the same sex or different sexes, and that a de facto relationship can exist even if one of the people is legally married to someone else, or is in another de facto relationship with someone else. This matters practically because it means a person's marital status to a third party, or another concurrent relationship, does not automatically prevent a genuine de facto relationship from being recognised for the purposes of the Family Law Act, though it can complicate how competing financial claims are ultimately resolved.

The threshold to apply for a property or maintenance order: section 90SB

Meeting the definition of a de facto relationship is not, by itself, enough to apply for property or maintenance orders. Section 90SB additionally requires the court to be satisfied of at least one of four things: the period, or the total of the periods, of the de facto relationship is at least 2 years; there is a child of the de facto relationship; the party applying for the order made substantial contributions of a kind set out in section 90SM, and a failure to make the order would result in serious injustice to that party; or the relationship is or was registered under a prescribed state or territory law. Only one of these needs to be satisfied. This threshold exists because de facto relationships, unlike marriages, are not formally registered as a matter of course, so the Act needs its own gateway test before a de facto partner can access the same financial remedies as a married person.

The limitation periods: why the contrast matters

The most consequential practical difference between de facto and married couples is not the substantive property or maintenance rules, which largely mirror each other, but the deadline to apply. Section 44(5) gives a de facto partner 2 years from the end of the de facto relationship to apply for a property or maintenance order, with the clock starting immediately at separation. Section 44(3) gives a married person 12 months from the date their divorce order takes effect, not from separation itself. Because a divorce order cannot even be applied for until 12 months' separation has passed, and then takes a further period to be made and to take effect under section 55, the real elapsed time from a married person's separation to their limitation deadline is typically well over a year, often approaching two years in practice, even though the statutory period itself is described as 12 months.

Getting leave to apply out of time

Missing the limitation period does not automatically end a person's claim, but it does require an extra step. Two separate subsections do this work, and they are easy to confuse. Section 44(4) governs leave for a late married-couple application, and section 44(6) governs leave for a late de facto application. Both turn on a similar hardship test: broadly, the applicant must show hardship would result if leave were refused, either to themselves or to a child. For a late de facto application, the parties can alternatively consent to the application proceeding without a formal leave application. Leave is not automatic, and delay itself can count against an applicant, so a person who has separated should treat these deadlines as real constraints rather than guidelines.

What de facto partners can claim

Once the section 90SB threshold and the section 44(5) time limit are satisfied, a de facto partner has access to largely the same financial remedies as a married person: property settlement under section 90SM (the equivalent of section 79), maintenance under section 90SF (the equivalent of sections 72 and 75(2)), and binding financial agreements under sections 90UB to 90UD (the equivalent of sections 90B to 90D). See property settlement in Australia and spousal maintenance in Australia for how those provisions work in practice.

Children of a de facto relationship

A child of a de facto relationship is treated the same way as a child of a marriage for the purposes of parenting orders under Part VII of the Family Law Act; the section 60CA paramountcy principle and the section 60CC best-interests factors apply identically regardless of whether the parents were married. Having a child of the relationship is also, on its own, enough to satisfy the section 90SB threshold for a property or maintenance application, even where the relationship lasted less than 2 years. See parenting orders in Australia for that framework.

This page provides general legal information about de facto relationships in Australia, verified 20 July 2026. It is not legal advice about your own relationship or its status. For advice, consult a legal practitioner admitted in the relevant Australian state or territory.

For the financial remedies available, see property settlement in Australia and spousal maintenance in Australia. For formalising arrangements, see binding financial agreements in Australia. For the full picture, return to the Australian family law hub.

Frequently Asked Questions

What makes a relationship "de facto" under Australian law?

Section 4AA defines a de facto relationship as one between two people, not married to each other and not related by family, who have a relationship as a couple living together on a genuine domestic basis, assessed against a non-exhaustive list of factors such as duration, common residence and financial interdependence.

Do we need to live together to be considered de facto?

Common residence is one of the factors under section 4AA(2), but section 4AA(3) confirms no single factor, including common residence, is necessary. A court looks at the whole relationship, including financial interdependence, mutual commitment and public reputation as a couple, to decide if it qualifies.

Can I be in a de facto relationship if I am still legally married to someone else?

Yes. Section 4AA(5) confirms a de facto relationship can exist even where one party is legally married to someone else, or is in another de facto relationship with someone else. Marital status to a third party does not automatically prevent a genuine de facto relationship being recognised.

How long do we need to have been together before we can apply for a property order?

Generally at least 2 years, under section 90SB, unless the couple has a child together, one party made substantial contributions that would cause them serious injustice without an order, or the relationship was registered under a state or territory scheme, any of which can satisfy the threshold instead.

What is the time limit to apply for a de facto property settlement?

Section 44(5) gives a de facto partner 2 years from the end of the relationship to apply for a property or maintenance order. The clock starts immediately when the relationship ends, unlike the married-couple deadline, which runs from the divorce order taking effect.

How does the de facto time limit compare to divorce?

A de facto partner has 2 years from separation (section 44(5)). A married person has 12 months from the divorce order taking effect (section 44(3)), which in practice is usually well over a year from separation, because a divorce order cannot be made until 12 months' separation has passed.

Can I apply if I missed the deadline?

Possibly. Leave is available, but under different subsections depending on the relationship: section 44(4) for a late married-couple application and section 44(6) for a late de facto application. Each generally requires hardship to the applicant or a child. For a late de facto application, the other party can also simply consent to it proceeding. Leave is not automatic, so acting promptly is important.

Are same-sex de facto relationships treated the same as opposite-sex relationships?

Yes. Section 4AA(5) expressly confirms a de facto relationship can exist between people of the same sex or different sexes, with the same definition, threshold and financial remedies applying regardless.

Do de facto partners get the same parenting rights as married parents?

Yes. Parenting orders under Part VII of the Family Law Act apply identically regardless of whether a child's parents were married or in a de facto relationship. The section 60CA paramountcy principle and section 60CC factors do not distinguish between the two.