A man and a woman carried on an intimate relationship for seventeen years. He helped her buy a house and supported her with regular payments. When it ended, she asked a court to divide their property as his de facto partner. The court said no, because across all those years the two had never truly merged their lives into one. Seventeen years was not enough.
That case, Jonah & White [2011] FamCA 221, is a useful place to start, because it cuts through the most common belief about de facto couples: that time together decides everything. It does not. This post explains whether de facto couples really do split property the same way as married couples, what you have to prove before you get there, and why there is no automatic equal split for anyone.
Yes, the same law, after two extra steps
Once a de facto couple is properly in the system, the answer is yes. The same part of the Family Law Act 1975 divides their property, using the same four step process and the same factors a court applies to married couples. The power sits in section 90SM, which mirrors section 79 for married couples almost word for word.
The difference is not in how the property is divided. It is in getting there. A married couple has a marriage certificate, so the relationship itself is never in doubt. A de facto couple has to clear two steps a married couple never faces: proving the relationship existed at all, and then clearing a gate in the Act before a court can make any property order. Those two steps are where most of the difficulty, and most of the myths, live.
Can you claim property against a long-term affair partner?
Not on its own. A long affair, even one with money, travel, and real affection, is not automatically a de facto relationship. What matters is whether two lives merged into a shared life, not how long the relationship lasted or how much was spent along the way.
This is what sank the claim in Jonah & White. The couple kept separate homes and separate lives across seventeen years. He went on living with his wife and children, who did not know about the relationship for most of that time. Justice Murphy described the real test as whether the parties had merged their two lives into one, a state he called coupledom. He found it absent, so there was no de facto relationship and no property claim to bring.
The lesson runs both ways. A short relationship can still be a de facto relationship, and a long one might not be. Length is only one of the things a court weighs, and never the deciding one on its own. And it is not only about length: simply sharing a child does not make two people de facto partners either.
What counts as a de facto relationship?
A de facto relationship is two people who are not married to each other and not related by family, living together as a couple on a genuine domestic basis. That definition is in section 4AA of the Family Law Act 1975, and it applies to same sex and opposite sex couples in exactly the same way.
The Act then lists things a court can look at: how long you were together, whether you lived together, whether there was a sexual relationship, how your finances were arranged, who owned and used property, whether you had children, and how you presented as a couple to other people. No single one of these is required, and a court weighs them together rather than ticking boxes. A relationship can also count even where one person was still legally married to someone else.
Does the relationship have to last two years?
No, not always. Two years is the best known way through the gate, but it is only one of four. Before a court can make a property order for a de facto couple, section 90SB of the Family Law Act 1975 requires that at least one of these is true:
- The relationship lasted at least two years; or
- there is a child of the relationship; or
- one partner made substantial contributions and would suffer serious injustice if no order were made; or
- the relationship was registered under a state or territory law.
Meet any one of these and the gate opens. This is the first myth undone: the two year figure is a doorway to a court, not a switch that turns on a property split. A couple together for eighteen months with a child between them can apply. A couple together for three years with no child still has to show they were genuinely a de facto couple in the first place.
What if there's a child but no relationship?
A child does not create a de facto relationship. Two people who were never a couple, even where they share a child after a one-night stand, are not de facto partners. So there is no property settlement to claim between them: the power to divide property exists only for couples who were married or de facto.
This is why the gateway works the way it does. The child limb in section 90SB means a child of the de facto relationship. It lets a couple whose relationship lasted under two years still apply, but only once they have shown a de facto relationship existed. It does not turn a one-night stand, what some now call a 'Tinder Surprise', into one.
None of this leaves the child unprovided for, because child support runs on a separate track. It is based on who the parents are, not on whether they were ever a couple. Both parents have a duty to support their child financially whether they were married, de facto, together briefly, or never lived together at all. That duty sits in the Child Support (Assessment) Act 1989 and is administered by Services Australia, using a formula based on each parent's income and care of the child.
Arrangements for the child work the same way. Where the child lives and how time is shared are decided under the parenting part of the Family Law Act 1975, on the child's best interests under section 60CC, whatever the parents' relationship was. Those are the disputes a section 60I certificate and Family Dispute Resolution are built for. If parentage itself is in doubt, it can be settled by the birth certificate, a DNA test, or a court before child support is worked out.
Is it an automatic 50/50 split?
No. There is no rule that property is shared equally, for de facto or married couples. A court starts from what each person actually owns and only changes that where it is just and equitable to do so. Equal sharing is a possible outcome, not a starting point.
The High Court made this clear in Stanford v Stanford [2012] HCA 52. A court cannot simply assume the whole pool should be divided up and then argue about the percentages. It first has to be satisfied that altering who owns what is just and equitable at all. Only then does it work out the shares. This is the second myth undone: there is no half each by default, and the same is true for married couples.
How a de facto property split is decided
The court follows the same four step process for everyone since the law was rewritten on 10 June 2025. It identifies the property that exists, looks at what each person contributed, weighs their current and future circumstances, and then checks that the overall result is just and equitable.
Those steps sit in section 90SM for de facto couples and section 79 for married couples. Contributions cover money and property, and also the unpaid work of running a home and raising children. Current and future circumstances cover things like age, health, income, and who cares for the children. The effect of family violence is now part of this assessment too. We explain the steps in more depth in how spent or wasted money is treated and how family violence affects a settlement.
How long do you have to apply?
A de facto couple has two years from the date they separated to apply to a court for a property settlement or maintenance. That time limit is in section 44 of the Family Law Act 1975. It is a different clock from the one married couples use, and it is an easy one to miss.
A married couple has twelve months from the date their divorce becomes final, which can fall years after they actually separated. A de facto couple has no divorce to start the clock, so the two years runs from separation itself. Apply after the deadline and you need the court's permission, which is not guaranteed. The safest course is to sort property out well inside the two years, by agreement wherever you can.
Can you settle it without going to court?
Yes, and most people do. You do not need a court to divide property. If the two of you can agree, you can make that agreement binding in one of two ways: Consent Orders approved by a court, or a Binding Financial Agreement. Both are available to de facto couples.
For de facto couples, Binding Financial Agreements sit in Part VIIIAB of the Family Law Act 1975, and each person has to get their own legal advice for the agreement to hold. Consent Orders are a court's stamp on terms you have already agreed, without anyone needing to attend a hearing. The two work differently and suit different situations. We set out how Consent Orders and Binding Financial Agreements compare on the financial settlement page.
Do you need a section 60I certificate?
No. A section 60I certificate applies only to parenting matters, not to property or money. You do not need one to start a financial case or to divide property as a de facto couple. Mediation is still usually the first and best step, just through a different door.
Financial matters have their own front door. Before filing a property case, each person is expected to take genuine steps to resolve it and to follow the pre-action procedures in the court rules, which means making a real attempt to settle first. Family Dispute Resolution is how most people do that. In mediation, the practitioner assigned to your matter does not decide anything or take sides. They help each of you shape and reality-check the proposals you put to each other, so you can reach an agreement that works and then make it binding. It is faster and far less costly than a contested court fight, and it keeps the decisions in your hands. You can read what Family Dispute Resolution is for how the process runs.
Common questions
Are de facto couples treated the same as married?
For dividing property, yes, once they are in the system. The same law, the same four step process, and the same factors apply. The differences come at the start: a de facto couple has to prove the relationship existed and clear the section 90SB gate first.
Is de facto property always split 50/50?
No. There is no automatic equal split for anyone in Australia, de facto or married. A court only changes who owns what where it is just and equitable, then works out fair shares based on contributions and future needs. Equal is one possible result, not the rule.
How long must a de facto relationship last?
There is no single minimum. Two years is one way to qualify, but a shorter relationship counts if there is a child, if one partner made substantial contributions and serious injustice would follow, or if the relationship was registered.
Can a de facto partner claim maintenance too?
Yes. De facto partners can claim maintenance on the same basis as married couples, under sections 90SE and 90SF of the Family Law Act 1975. We cover how it works in spousal maintenance after separation.
What is the time limit to apply?
Two years from the date you separated, under section 44 of the Family Law Act 1975. After that you need the court's permission to apply, which is not automatic. Married couples work to a different deadline of twelve months from divorce.
Does a long relationship prove we were de facto?
Not by itself. As Jonah & White showed, even a seventeen year relationship was not de facto, because the two lives never merged into one. A court looks at the whole picture, not just the length.
Do you need court to divide property?
No. If you can agree, you can record it in Consent Orders or a Binding Financial Agreement without a hearing. Family Dispute Resolution is the usual way to reach that agreement, and it does not need a section 60I certificate.
This article is general information only and was correct to the best of our knowledge at the time of writing. It is not legal, tax, or financial advice and does not take account of your personal situation. The law changes, some measures mentioned may be proposals that are not yet in force, and fees and figures can change over time, so check anything that matters and get advice for your own circumstances from a family lawyer, an accredited Family Dispute Resolution Practitioner, or a qualified tax or financial professional before acting. If you or someone else is in immediate danger, call 000. For confidential support with family violence or concerns about a child's safety, contact 1800RESPECT on 1800 737 732.