Separated But Not Married? Here’s How the Law Treats De Facto Breakups
Trying to figure out where you stand legally after a breakup? Whether you’ve been in a long-term de facto relationship or recently separated, it’s natural to wonder how the law treats your relationship compared to a marriage.
Let’s clear the confusion by breaking down how Australian family law views de facto relationships and what that means for your rights when it comes to property, money, and more.
The Key Takeaways
De facto couples in Australia have many of the same rights as married couples, but there are important differences that can affect your legal standing, especially during a separation.
Here's a quick rundown:
Legal recognition isn’t automatic: de facto status must be proven or formally registered in some states.
Time limits matter: de facto couples have two years from separation to apply for property settlement or spousal maintenance.
Proving the relationship can be complex, especially in contested financial or parenting disputes.
Spousal maintenance is available under the same criteria as marriage, though laws vary in Western Australia.
Mediation is often the first and best step for resolving property or parenting issues without going to court.
Parenting arrangements are judged equally, regardless of whether parents were married or de facto.
Common myths persist, like the idea that de facto relationships automatically get half. In reality, every case is judged individually.
Financial agreements can offer clarity during or after a relationship and help prevent future disputes.
Understanding these core issues puts you in a stronger position - whether you're planning ahead, going through a breakup, or just making sense of where you stand.
What Is a De Facto Relationship in the Eyes of the Law?
Under the Family Law Act 1975, a de facto relationship is one where two people (regardless of gender):
Live together on a genuine domestic basis,
Aren’t legally married or related by family.
To determine if a relationship qualifies, the court will look at things like:
How long you’ve been together (usually at least 2 years),
Whether you share finances or property,
Whether you have children,
Your living arrangements and mutual commitment.
If those boxes are ticked, you could be considered de facto under the law, and that opens the door to many of the same rights married couples have.
What Changes Legally When You’re Married (or Not)?
1. Proving the Relationship
Married couples have it easy here - a marriage certificate is all that’s needed. De facto couples, on the other hand, must prove their relationship meets the criteria mentioned above.
That can be straightforward or complicated, depending on how much evidence you have.
This matters most in disputes about finances or property. If one partner contests the relationship’s status, the court may need to decide whether it was legally de facto in the first place.
2. Property Settlement Time Limits
Married couples: You have 12 months from the date of divorce to apply for a property settlement or spousal maintenance.
De facto couples: You have 2 years from the date of separation.
If you miss the deadline, you’ll need special permission from the court to proceed — and that’s not guaranteed.
3. Spousal Maintenance
If one partner can’t support themselves and the other has the capacity to help, the court can order spousal maintenance. This applies equally to both de facto and married couples under federal law (except WA, where separate state rules apply to de facto claims).
What Happens After a De Facto Split?
If you’ve recently separated from a de facto partner, you might be wondering what your next steps should be, especially if there are shared finances, property, or children involved.
Here’s how to navigate the legal side of a de facto breakup with clarity and confidence.
Can You Protect Yourself with a Legal Agreement?
Even after separation, it's not too late to protect your financial future. Binding financial agreements (available to de facto couples just like married ones) can formalise how assets, debts, and liabilities will be divided.
These agreements are especially helpful if:
You want to avoid court,
You’ve made informal arrangements and want legal certainty,
Or you’re concerned about future financial disputes.
Important to know:
They must be drafted by a qualified lawyer,
Both parties must get independent legal advice, and
They can be made before, during, or after the relationship, including after separation.
A financial agreement offers clarity and peace of mind at a time when emotions (and finances) can run high.
Mediation: A Smarter First Step
If you and your ex-partner can’t agree on property or parenting arrangements, mediation is often the best place to start. It’s a voluntary process that helps both parties work toward a fair outcome, without jumping straight into costly court proceedings.
After a de facto breakup, mediation can help resolve:
Who gets what in a property split,
How shared debts will be handled,
Parenting schedules and responsibilities.
Organisations like Relationships Australia and Family Relationships Online offer support, including safety screenings, if there are concerns about domestic violence or coercive control.
If mediation is successful, your agreement can be formalised through:
Consent orders from the court, or
A binding financial agreement.
Starting with mediation can keep things civil, reduce stress, and give both parties more control over the outcome.
Parenting Arrangements After Separation
If you and your former de facto partner share children, the law treats you no differently than if you were married. The focus is always on the best interests of the child, not the legal status of the parents' relationship.
After a de facto separation, you’ll need to work out:
Where the children will live,
How time will be shared between parents,
How decisions about education, health, and welfare will be made.
If you can’t agree privately, family dispute resolution (mediation) is usually required before going to court.
Whether you're newly separated or already co-parenting, understanding your rights and responsibilities early can make a huge difference to your children — and your long-term peace of mind.
Common Misconceptions About De Facto Relationships
De facto relationships often sit in a legal grey zone in the minds of many Australians, and unfortunately, that confusion can lead to costly mistakes during separation.
Here are some of the most common myths that people believe, and what the law actually says:
Myth 1: “You have to live together for two years to be considered de facto.”
Not necessarily. While two years of cohabitation is a common guideline, it's not a strict legal requirement. Courts assess each situation individually, and you could be recognised as de facto in less than two years if:
You’ve had a child together,
You’ve shared significant financial commitments,
There are other strong indicators of a committed domestic relationship.
In some cases, the court has found a de facto relationship existed even where the couple lived apart but maintained an intimate, financially connected partnership.
Myth 2: “Once you’re de facto, you automatically get 50% of everything.”
Definitely not. The idea that everything gets split down the middle is a hangover from dramatic TV divorces, not reality.
In both marriages and de facto separations, property is divided based on contributions, both financial and non-financial (like homemaking or childcare), and what’s considered just and equitable.
The court considers things like:
Who brought what into the relationship,
How assets and debts were acquired,
Future needs (e.g., who will care for children, health issues, income potential).
So, there’s no “one-size-fits-all” split, and being de facto doesn’t guarantee a 50/50 outcome.
Myth 3: “De facto rights automatically kick in after two years.”
This one’s only half-true. Two years is a threshold, not a guarantee. Even after two years, you still need to show the relationship meets the legal criteria for being “genuine” and “domestic.”
If there’s a dispute, the court will weigh up evidence, like shared living arrangements, joint finances, public acknowledgement of the relationship, and more.
Likewise, registering a relationship (available in some states and territories) can make things much easier legally, but it’s not mandatory to establish de facto status.
Myth 4: “You can’t be in a de facto relationship if you’re still married to someone else.”
False. It’s entirely possible (and legally recognised) to be in a de facto relationship even if one partner is still legally married to another person. The key issue is whether the new relationship meets the criteria of a de facto relationship.
This can arise when someone separates from their spouse but never finalises a divorce and begins a new long-term domestic relationship.
Myth 5: “De facto couples don’t have access to legal protections like married couples do.”
This might have been true decades ago, but not anymore. Since reforms in 2009, de facto couples (including same-sex couples) have had nearly identical rights to married couples under the Family Law Act, including access to:
Property settlements,
Spousal maintenance,
Parenting and custody decisions.
The only major exception is Western Australia, where state laws apply to de facto couples in financial matters.
This can affect how property disputes or financial claims are handled, so if you're based in WA, it's worth getting region-specific advice.
The Bottom Line
The gap between de facto and married rights has narrowed a lot over the years, but it hasn’t disappeared entirely.
Knowing the key differences (especially around proving your relationship, state laws, and legal deadlines) gives you a better shot at protecting your interests.
Need clarity on your rights or next steps? The team at Hamilton Thomas Lawyers is here to help.
Whether you’re navigating a de facto separation or want legal peace of mind for the future, we offer tailored advice with compassion and expertise.
Reach out today for a confidential consultation.
