Who gets the house in a de facto separation?

De facto couples have the same property rights as married couples

Before 2009, property rights for de facto couples in Australia were governed by state law and were significantly weaker than those available to married couples. That changed when de facto financial matters were brought under the federal Family Law Act in March 2009.

Today, if you are or were in a de facto relationship in Australia, the same property settlement framework applies to you as to a married couple. The family home, superannuation, savings, debts — all of it is assessed using the same process.

What counts as a de facto relationship?

To access property settlement under the Family Law Act, the court needs to be satisfied that a genuine de facto relationship existed. Factors the court considers include:

• The length of the relationship (typically at least two years, though this is not an absolute rule)
• Whether you lived together, and for how long
• Whether there is a child of the relationship
• The degree of financial dependence or interdependence
• Whether the relationship was registered (if your state has a relationship register)
• The nature of your mutual commitment — shared household, shared finances, how you presented publicly

If there is a child of the relationship, the two-year threshold does not apply — you can access property settlement regardless of the relationship length. Similarly, if one party made substantial contributions that would cause serious injustice if not recognised, the time threshold can also be set aside.

How is the split calculated?

Exactly the same way as for married couples. The court (or you, in negotiation) applies the four-step framework under the Family Law Act:

• Identify the asset pool: All assets and liabilities of both parties are identified and valued.
• Assess contributions: Financial and non-financial contributions throughout the relationship are considered — who paid what, who did the homemaking, who supported whose career.
• Assess future needs: Adjustments may be made for income differences, who has primary care of any children, health, and earning capacity.
• Just and equitable: The overall outcome is assessed for fairness.

There is no presumption of equal split. The outcome depends on the specific facts of your relationship.

Common mistakes de facto couples make

Assuming property means nothing without legal marriage. This is the most common misunderstanding. De facto property rights are real and enforceable. If your partner is trying to exclude you from property settlement because you were not married, seek legal advice immediately.

Missing the time limit. De facto couples generally have two years from the date of separation to apply for property orders. After that, you need the court’s permission to proceed, which is not guaranteed. Do not delay.

Ignoring superannuation. Many de facto couples overlook super because it feels abstract. It is part of the pool and often the largest asset. See our guide: How is superannuation split?

Relying on informal agreements. A verbal or informal written agreement is not a binding property settlement. To be enforceable, property arrangements need to be formalised as either a consent order (approved by the court) or a binding financial agreement prepared by lawyers.

What happens to the house specifically?

The family home is just one asset in the pool. It is not automatically awarded to the primary carer, the person whose name is on the mortgage, or the person who has lived there since separation. It is one item assessed alongside everything else.

Possible outcomes include one party buying out the other’s equity share, selling the property and dividing the proceeds, or one party retaining the home in exchange for the other party retaining more of another asset (such as super). The right outcome depends on your specific numbers — which is where modelling the full pool is useful.