De facto property division under the Family Law Act
Since 2009, de facto couples (including same-sex couples) in all states except Western Australia can apply to the Federal Circuit and Family Court of Australia for property orders. The applicant must establish a de facto relationship under s 4AA and meet a gateway requirement under s 90SM before the court can exercise jurisdiction.
This is an 8-step workflow for dividing property after the breakdown of a de facto relationship under the Family Law Act 1975 (Cth). It covers threshold eligibility, the four-step framework, and filing options for consent orders or contested proceedings.
Before you start
- Confirmation that the relationship meets the s 4AA definition of a de facto relationship
- Identification of at least one gateway under s 90SM (two-year relationship, child, significant contributions, or serious injustice)
- Full and frank disclosure of assets, liabilities, superannuation, and financial resources
- Application must be filed within two years of separation (or leave sought)
The workflow
Establish de facto status under s 4AA
Confirm that the relationship satisfies the statutory definition of a de facto relationship under s 4AA of the Family Law Act. Gather evidence of cohabitation, shared finances, mutual commitment, and public reputation as a couple.
Satisfy a s 90SM gateway requirement
Identify which gateway provision applies: the relationship was at least two years, there is a child of the relationship, the applicant made substantial contributions and failure to make an order would result in serious injustice, or the relationship was registered under state law.
Identify and value the property pool
Prepare a comprehensive schedule of all assets, liabilities, superannuation interests, and financial resources held by either or both parties. Obtain current valuations for real property, businesses, and significant personal property.
Assess contributions
Analyse the financial and non-financial contributions of each party, including initial contributions at the start of the relationship, contributions during the relationship (income, homemaker, parenting), and post-separation contributions.
Consider future needs factors
Apply the s 90SF(3) factors (equivalent to s 75(2) for married couples): age, health, income-earning capacity, care of children, duration of relationship, and any other relevant matters affecting future financial needs.
Confirm the result is just and equitable
Step back and assess whether the proposed division is just and equitable overall. This is a mandatory check — the court will not make an order unless satisfied on this point.
Draft orders or initiating application
If agreed, draft consent orders using the FCFCOA format and prepare the Form 11 Application for Consent Orders. If contested, draft an Initiating Application and supporting affidavit outlining the relationship history, pool, and proposed division.
File and serve
File the application through the Commonwealth Courts Portal. Pay the filing fee. Serve the respondent with sealed copies of the application and supporting material. Note the two-year limitation period from separation.
What you will have at the end
Court orders (consent or contested) dividing the de facto property pool. Orders are enforceable as court orders and may include transfers of real property, superannuation splitting orders, and lump sum payments.
Common issues
- Failing to gather sufficient evidence of the de facto relationship to satisfy s 4AA
- Missing the two-year limitation period under s 44(6) without seeking leave
- Overlooking that Western Australia has its own de facto property regime under state legislation
- Not addressing superannuation splitting, which follows the same Part VIIIB framework as married couples
- Confusing the s 90SF(3) future needs factors with the s 75(2) factors applicable to married couples
Run this workflow on a real matter
Quillio walks you through the four-step framework for de facto property division, checks your gateway eligibility, and drafts consent orders or initiating applications in the FCFCOA format. See /practice-areas/family-lawyers or start a free trial.
This workflow is a general guide. It does not apply in Western Australia, where de facto property matters are dealt with under the Family Court Act 1997 (WA). Seek specific advice for cross-border or international de facto relationships.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
Start your free trial