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Property division for unmarried couples who separate – new law

Date : 01 Mar 2009

Property disputes between unmarried couples may be heard under the Family Law Act 1975 if the couple separates after 1 March 2009. These relationships have been defined in law as ‘de facto relationships’.

A de facto relationship may exist if two people are not married or related to each other, but live together on a genuine domestic basis.

It is possible for a couple to be in a de facto relationship even if one person is also married to (or in another de facto relationship with) someone else.

De facto couples may be same-sex or heterosexual couples.

If there is a dispute about whether a de facto relationship existed, the court may take all circumstances of the relationship into consideration to help it to decide. See ‘De facto & same-sex relationships’ (link below).

Which relationships are covered?

The court may make an order if it is satisfied that the couple were living in a genuine domestic relationship. This includes if:

the couple have a child of the relationship
they were living together for two years or longer
the relationship has been registered under a state or territory law.

The court may also make an order in cases where it can be demonstrated that one of the parties has made a significant contribution to the other to the extent that it would be seriously unjust if an order was not made. For example if one of the parties gave up work so that they could care for children from their partners’ former relationship.

Couples who have already separated

Couples who separated before 1 March 2009 will be able to apply to court for a property order if both people agree to this. Both parties will need to get independent legal advice before they decide that the new laws should apply to their relationship.

Time limits

An application to the family law courts involving non-child related disputes must be made within two years from the date of separation. An application can only be made after this time with permission of the court.

Types of disputes the family law courts can resolve

The family law courts can now resolve the same types of disputes between separated de facto couples as it can between separated married couples.

As well as orders relating to their children, separated de factos can now apply to the family law courts for orders:

distributing their property or financial resources (including superannuation)
dealing with partner maintenance
resolving a dispute about a binding financial agreement.

Factors the court will consider

The court will apply the same principles to married and unmarried couples when it makes a decision about how resolve disputes. For example, the court will consider the length of time the parties have been together, the contributions that each party has made to the relationship and the future needs of the parties.

Binding financial agreements

De facto couples can now also enter into a financial agreement about what will happen to their property and assets if their relationship ends. These types of agreements will be binding if they meet certain legal conditions. They can be made before or during the relationship or after separation.

Resolving disputes without going to court

In most cases de facto couples will need to try to sort out their dispute over property through family dispute resolution before they take the matter to court.

More information

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Last reviewed: 02 January 2009 Last modified: 28 July 2009