The end of a de facto relationship can create uncertainty about your financial future. Many people assume that because they were not married, they have limited legal rights when the relationship ends.
However, in Victoria and throughout Australia, eligible de facto partners may have similar rights to married couples when it comes to property settlements, superannuation and financial support after separation.
A common question asked by separating partners is:
“What can a de facto partner claim after separation?”
The answer depends on the circumstances of the relationship, including the length of the relationship, the contributions made by each person, the assets and liabilities involved, and the future financial circumstances of both parties.
A de facto partner may be able to make a claim for:
- A share of property and assets
- Superannuation interests
- Financial adjustments based on contributions
- Spousal maintenance
- Other financial orders available under Australian family law
However, there is no automatic entitlement to receive half of everything. Each matter must be assessed individually to determine what outcome is fair and appropriate.
What Is Considered a De Facto Relationship in Victoria?
Under Australian family law, a de facto relationship is a relationship between two people who live together on a genuine domestic basis but are not married or in a registered relationship.
In Victoria, couples may also choose to formally register their relationship under the Victorian Registry of Births, Deaths and Marriages.
However, registering a relationship is not the only way a relationship may be recognised as de facto.
When determining whether a de facto relationship exists, the Court considers the overall circumstances of the relationship.
Relevant factors may include:
- The length of the relationship
- Whether the parties lived together
- The nature of the shared residence
- Whether finances were combined
- The degree of financial dependence or interdependence
- Whether there were children of the relationship
- The level of commitment to a shared life
- How the relationship was presented publicly
- Ownership and use of property
No single factor determines whether a relationship is de facto. The Court considers the relationship as a whole.
Do De Facto Partners Have the Same Rights as Married Couples in Victoria?
In many circumstances, yes.
Eligible de facto partners in Victoria may be able to access the same family law pathways as married couples when dealing with financial matters after separation.
This includes making applications for:
Property settlement
A property settlement determines how assets, liabilities and financial resources should be divided after separation.
This may involve:
- The family home
- Investment properties
- Bank accounts
- Vehicles
- Shares and investments
- Businesses
- Trust interests
- Superannuation
- Debts
Importantly, property does not need to be jointly owned to be considered.
For example, an investment property owned solely by one partner may still form part of the overall property pool.
Spousal maintenance
A former de facto partner may also be able to seek spousal maintenance where:
- They are unable to adequately support themselves; and
- The other person has the capacity to provide financial assistance.
Spousal maintenance is separate from child support, which is generally dealt with through Services Australia.
Can a De Facto Partner Claim Half the Assets in Victoria?
No.
One of the most common misconceptions about de facto relationships is that separation automatically results in a 50/50 division of property.
Australian family law does not apply an automatic equal split.
Instead, the Court considers whether the outcome is just and equitable by assessing factors such as:
- The financial contributions of each person
- Property brought into the relationship
- Non-financial contributions
- Contributions as a homemaker or parent
- The length of the relationship
- The future needs of each person
For example, one partner may have contributed more financially, while the other may have made significant contributions through childcare, household responsibilities or supporting the other partner’s career.
Both forms of contribution can be recognised.
How Are De Facto Property Settlements Determined in Victoria?
When resolving a de facto property settlement, the Court generally considers four main stages.
1. Identifying the property pool
The first step is determining all assets, liabilities and financial resources.
This may include:
- Real estate
- Savings
- Investments
- Superannuation
- Businesses
- Trust interests
- Loans and debts
Both parties have an obligation to provide full and frank financial disclosure during family law proceedings.
More information about financial disclosure obligations can be found through the Federal Circuit and Family Court of Australia.
2. Assessing contributions made during the relationship
The Court considers contributions made by both parties.
These may include:
Financial contributions
Such as:
- Income
- Savings
- Property purchases
- Mortgage repayments
- Investments
Non-financial contributions
Such as:
- Caring for children
- Managing the household
- Renovating property
- Supporting a partner’s employment or business
Australian family law recognises that contributions are not limited to money.
3. Considering future needs
The Court may consider whether one person has greater future financial needs.
Relevant factors may include:
- Age
- Health
- Employment prospects
- Income earning capacity
- Parenting responsibilities
- Financial resources
These considerations may affect the final division of property.
4. Determining a fair outcome
The final question is whether the proposed settlement is fair in all circumstances.
There is no mathematical formula used to determine a property settlement. Each matter depends on its unique facts.
Can a De Facto Partner Claim Superannuation in Victoria?
Yes.
Superannuation is treated as property under Australian family law and may form part of a de facto property settlement.
Depending on the circumstances, superannuation may be:
- Included when calculating the overall asset pool
- Split between parties through a superannuation splitting order
- Considered during settlement negotiations
Because superannuation can represent a significant financial asset, it is important that it is properly considered when negotiating a settlement.
Information about superannuation and family law splitting arrangements is also available through the Australian Taxation Office.
What Happens to Property When a De Facto Relationship Ends?
When a de facto relationship breaks down in Victoria, separating couples may need to resolve:
- Property division
- Superannuation
- Debts
- Financial support
- Parenting arrangements
- Formalising agreements
Some couples are able to reach an agreement through negotiation or mediation.
Others may require assistance through the Federal Circuit and Family Court of Australia if an agreement cannot be reached.
Before commencing Court proceedings, parties may also be encouraged to explore dispute resolution options where appropriate.
How Long Does a De Facto Partner Have to Make a Property Claim in Victoria?
Time limits apply to de facto property settlement applications.
Generally, an application must be made within two years from the breakdown of the de facto relationship.
If this timeframe has passed, permission from the Court may be required before proceedings can begin.
Because delays can affect your legal rights, it is important to seek legal advice as soon as possible after separation.
Can De Facto Couples Make a Binding Financial Agreement?
Yes.
A Binding Financial Agreement allows couples to decide how financial matters will be dealt with if the relationship breaks down.
These agreements may be entered into:
- Before a relationship begins
- During a relationship
- After separation
A Binding Financial Agreement can provide certainty and help reduce future disputes.
Both parties must obtain independent legal advice before entering into the agreement.
Why Speak With a De Facto Relationship Lawyer in Victoria?
De facto relationship matters can involve complex financial and legal issues.
Legal advice can be particularly important where there are:
- Significant assets
- Property ownership disputes
- Children involved
- Businesses or trusts
- Disagreements about contributions
- Concerns about financial disclosure
An experienced family lawyer can help you understand:
- Whether your relationship qualifies as de facto
- What claims you may be able to make
- What your former partner may be entitled to claim
- How to negotiate a fair settlement
- Whether a formal agreement is required
How Irvine Lawyers Can Help With De Facto Relationship Matters
The breakdown of a de facto relationship can be challenging, particularly when financial decisions need to be made about your future.
The family law team at Irvine Lawyers assists clients across Victoria with:
- De facto relationship advice
- Property settlements
- Separation matters
- Superannuation disputes
- Spousal maintenance
- Binding Financial Agreements
- Family law negotiations
Our lawyers provide practical advice tailored to your circumstances and help you understand the options available.
If you are separating from a de facto partner and need advice about your rights and entitlements, contact Irvine Lawyers today to discuss your situation.
Frequently Asked Questions
Does a de facto partner automatically get half of everything?
No. There is no automatic 50/50 split. The outcome depends on contributions, future needs and the circumstances of the relationship.
How long do you need to live together to be considered de facto in Victoria?
There is no single timeframe. The Court considers the overall nature of the relationship.
Can a de facto partner claim superannuation?
Yes. Superannuation may form part of a de facto property settlement.
How long after separation can a de facto partner make a claim?
Generally, a de facto partner has two years from the breakdown of the relationship to commence proceedings.