When it comes to a de facto property settlement in NSW, what are you entitled to? You might assume that a property settlement is only available to married couples. However, separated de facto partners may also seek financial or property orders under the Family Law Act 1975 (Cth). Seeking legal advice early can help you understand your eligibility and rights.
How Can De Facto Couples Access a Property Settlement?
If you have lived with your partner in NSW as a couple on a genuine domestic basis, you may be able to apply for property or other financial orders under Part VIIIAB of the Family Law Act.
The Act defines a de facto relationship as one between two people who live together as a couple on a genuine domestic basis, but who are not legally married to each other or related by family. The definition applies to both same-sex and opposite-sex relationships.
The court considers the whole of the relationship. Relevant factors may include:
- the duration of the relationship
- the nature and extent of the parties’ common residence
- whether a sexual relationship existed
- the degree of financial dependence or interdependence
- the ownership, use and acquisition of property
- the degree of mutual commitment to a shared life
- whether the relationship was registered under a prescribed law
- whether the parties cared for and supported children
- how the parties presented themselves to family, friends and the community
No single factor is decisive. A couple may be in a de facto relationship even if they did not live together continuously or did not combine all their finances.
Does Your Relationship Meet the Threshold?
Being in a de facto relationship does not, by itself, give the court power to make a property order. The applicant must generally establish:
- that there was a genuine de facto relationship and that it has broken down;
- that the parties have the required geographical connection to a participating Australian jurisdiction;
- that the relationship falls within the relevant federal family-law regime; and
- at least one statutory gateway requirement.
NSW is a participating jurisdiction for the federal de facto property regime. The gateway requirements include at least one of the following:
- the de facto relationship lasted for at least two years in total;
- there is a child of the de facto relationship;
- the relationship was registered under a prescribed state or territory law, such as the Relationships Register Act 2010 (NSW); or
- one party made substantial contributions to the property of the other party or to the parties, and refusing to make an order would result in serious injustice.
Satisfying these requirements does not guarantee a particular outcome which depends on the parties’ assets, liabilities, contributions, financial circumstances and the evidence available.
How Does the Court Divide Property?
Courts apply the framework in Part VIIIAB. Amendments commencing 10 June 2025 gave this framework more structure, though case law remains relevant to its interpretation. In broad terms, the court will:
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Identify the property, liabilities and financial resources
The court considers property held by either party, whether separately or jointly. The property pool may include:
- the family home and other real estate
- bank accounts and savings
- investments and shares
- vehicles
- business interests
- interests in trusts
- inheritances
- superannuation interests
- liabilities and debts
The court must identify and value the relevant property, liabilities and financial resources as accurately as the evidence permits. The way an asset or debt is legally owned does not necessarily determine the final outcome.
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Assess the parties’ contributions
The court considers contributions made before and during the relationship, including:
- initial financial contributions
- direct financial contributions
- indirect financial contributions
- non-financial contributions
- homemaker contributions
- parenting and caregiving contributions
Contributions may be made to property owned by one party, property owned jointly, or the welfare of the family. For example, a party who undertakes unpaid childcare and household work may have made a significant contribution even if they earned little or no income.
The weight given to an initial contribution depends on the circumstances. In a longer relationship, an initial contribution may become eroded as assets are used, replaced or combined. In a shorter relationship, an initial contribution may remain more readily identifiable and carry more ‘weight’ in an assessment of that party’s contributions.
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Consider other relevant circumstances
The court may consider matters including:
- the parties’ ages and health
- their income, earning capacity and financial resources
- the care and housing needs of children under 18
- the parties’ responsibilities and commitments
- the parties’ liabilities and the circumstances in which they were incurred
- any material wastage of property or financial resources
- the effect of family violence, where relevant
- the parties’ current and future circumstances
If one partner gave up career opportunities to care for children or support the other partner’s career, that may be relevant to the assessment of contributions and future circumstances.
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Decide whether an order is appropriate and just and equitable
The court must determine whether it is appropriate to make an order at all – there’s no automatic 50/50 split. The outcome always depends on the evidence.
What Changed on 10 June 2025?
The 2025 amendments expressly address several issues relevant to property and financial disputes.
Economic effects of family violence
Where relevant, the court must consider the effect of family violence on a party’s contributions and current and future circumstances. Economic or financial abuse may constitute family violence, for example, controlling a partner’s money, restricting financial autonomy or employment, or causing a partner to incur debt.
Companion animals
Specific provisions deal with qualifying companion animals, including family pets. If the parties cannot agree, the court may make limited orders, including sole ownership, transfer to a consenting third party, or sale. Shared ownership or care arrangements are not available. Assistance animals and animals kept for business, agricultural or laboratory purposes are excluded.
Financial disclosure
The Act now contains an ongoing statutory duty of disclosure for financial proceedings. Failing to disclose fully can lead to costs orders, adverse findings, orders addressing the non-disclosure, or other sanctions. Hiding assets or understating income can significantly damage a party’s position.
Is There a Time Limit?
You generally must commence proceedings for de facto property or other financial orders within two years after the breakdown of the de facto relationship.
Permission (i.e. ‘leave’) of the court must be granted to commence proceedings outside that period. Leave is discretionary and is not automatic. A delay may therefore create a serious risk to the claim.
The date of separation is not always obvious. Separation may occur gradually, and former partners may continue living under the same roof for financial, parenting or practical reasons.
If there is uncertainty about the breakdown date, legal advice should be obtained promptly.
How Is Superannuation Treated?
Superannuation is treated as property in family law settlements and may be split via a court order or a valid agreement, subject to superannuation and family law requirements. Split funds typically remain preserved within the superannuation system, not paid out as immediate cash. Because valuation, accessibility, fund rules, and tax implications vary, both parties’ accounts must be assessed carefully, and specialist advice is recommended.
How Can a Family Lawyer Help?
A de facto property settlement is rarely straightforward, particularly where the parties disagree about the relationship, the separation date, the value of assets or the contributions each person made.
A family lawyer can help you:
- assess whether the federal de facto regime applies
- determine whether a gateway requirement is satisfied
- identify and value property, liabilities and financial resources
- assess financial, non-financial, homemaker and parenting contributions
- consider the treatment of superannuation
- address the economic effects of family violence, where relevant
- negotiate through correspondence, mediation or another dispute-resolution process
- prepare or review a proposed settlement
- commence proceedings within the applicable time limit if agreement cannot be reached
A negotiated settlement may be formalised through consent orders or, where the statutory requirements are met, a binding financial agreement. These are different legal mechanisms, and the appropriate option depends on the orders sought and the parties’ circumstances.
Key Takeaways
- De facto partners in NSW may be able to seek property or other financial orders under the Family Law Act 1975 (Cth).
- The applicant must establish a genuine de facto relationship that has broken down, the required geographical connection and at least one statutory gateway requirement.
- Proceedings generally must be commenced within two years after the relationship breaks down. A late application requires the court’s permission.
- The court considers property, liabilities, financial resources, contributions and relevant current and future circumstances before deciding whether an order is appropriate and just and equitable.
- Superannuation may be divided, but special procedural, fund and preservation rules apply.
- Early legal advice can help protect evidence, address disclosure issues and avoid problems with the limitation period.
This article is intended as general legal information only and does not constitute legal advice. Family law matters are complex, and the appropriate outcome depends on the individual circumstances and evidence. Please contact a qualified Australian family lawyer for advice about your situation.