De Facto Break Up Entitlements Australia

When a de facto relationship ends, you may still have significant rights to property, superannuation, and financial support.

Your de facto break up entitlements in Australia can include property adjustment orders, superannuation splitting, and, in some cases, spousal maintenance, depending on the length of your relationship, the contributions each of you made, and your future needs.

What Counts as a De Facto Relationship?

In Australia, you do not need to be married to have family law rights. A de facto relationship exists where two people are not married but live together on a genuine domestic basis as a couple.

You will usually be treated as being in a de facto relationship if:

• You have lived together for at least two years, or
• You have a child together, or
• You have made substantial contributions (financial or non-financial), or
• The relationship has been formally registered in a state or territory that allows registration.

The court looks at the reality of the relationship, including shared residence, finances, ownership of property, and how you presented yourselves to family, friends, and the community.

Key takeaway 🔑: You may qualify for de facto break-up entitlements even without marriage, if you have lived together on a genuine domestic basis or registered the relationship.

Property and Financial Settlement

After a de facto relationship ends, you can usually seek a property settlement, similar to separated married couples. This involves identifying and dividing the asset and debt pool, looking at both parties’ contributions and future needs.

Contributions can include:

• Financial contributions such as wages, savings, property purchases, inheritances, or paying the mortgage
• Non-financial contributions such as renovating the home, managing investments, or unpaid work in a family business
• Domestic and caregiving contributions, such as caring for children, running the household, and supporting your partner’s career

Once contributions are assessed, the court then considers whether either party has greater future needs, for example, due to the primary care of children, lower earning capacity, health issues, or limited employment history. The final division is then adjusted to achieve a fair, or “just and equitable”, outcome.

Key takeaway 🔑: Your de facto break-up entitlements depend not just on what you own now but also on what you contributed and what you will need after separation.

Superannuation Splitting

Superannuation is treated as part of the overall asset pool in a de facto break-up. Even if the superannuation is in one person’s name only, it can usually be valued and split as part of the settlement.

You and your former partner can:

• Negotiate how superannuation will be divided as part of an overall settlement
• Enter into a formal superannuation splitting agreement, or
• Ask the court to make superannuation splitting orders if you cannot agree

Because super is often one of the largest assets, especially in longer relationships, it can make a significant difference to your long-term financial position.

Key takeaway 🔑: De facto break-up entitlements normally include superannuation, which can be valued and split, even when it is only in one person’s name.

Spousal Maintenance

If you cannot adequately support yourself after separation and your former partner has the capacity to pay, you may have an entitlement to spousal maintenance. This is separate from child support and focuses on helping you meet reasonable living expenses while you get back on your feet.

The court may consider:

• Your age, health, and work history
• Your ability to work or study
• Any responsibilities for children or dependents
• The other party’s income, assets, and capacity to pay

Spousal maintenance is not automatic. It depends on both need and capacity. It can be paid as a regular amount for a period of time or, in some cases, as a lump sum.

Key takeaway 🔑: As part of your de facto break-up entitlements, you may be able to claim spousal maintenance if you cannot meet your reasonable needs and your former partner has the means to assist.

Time Limits and Registration

There are strict time limits for pursuing de facto break-up entitlements. In most cases, you must start court proceedings for property settlement or spousal maintenance:

• Within two years of the date of separation

If you miss this window, you generally need the court’s permission to proceed, which is not guaranteed. Where a de facto relationship has been registered, different time frames may apply under state or territory laws, and registration can make it easier to prove the existence and duration of the relationship.

Key takeaway 🔑: Act promptly. If you do not pursue your de facto break-up entitlements within the usual time limits, you may lose the right to make a claim.

Informal Agreements vs Formal Orders

Some couples reach an informal agreement about splitting property, superannuation, and other financial matters. While this can seem simpler at the time, informal arrangements do not give the same level of protection as formal documents.

To properly secure your de facto break-up entitlements, you can:

• Apply for consent orders through the court to formalise an agreed settlement, or
• Enter into a binding financial agreement that complies with legal requirements, including independent legal advice for both parties.

These options make the agreement legally enforceable and reduce the risk of future disputes or unexpected claims.

Key takeaway 🔑: Informal agreements can be a starting point, but formal orders or a binding agreement are the safest way to protect your de facto break-up entitlements.