De facto property settlement: the 2-year time limit

Separation can leave de facto partners with an important question: do they have the same financial rights as a married couple? The short answer is that separated de facto couples have much the same rights as separated married couples, including access to property settlement and maintenance under the Family Law Act.

There is, however, a deadline that deserves attention from the outset. An application for a de facto property settlement or maintenance must generally be made within two years of separation. That makes the separation date more than a personal milestone. It is a date with legal significance.

Understanding those two points together is essential. Being unmarried does not, by itself, mean there are no financial rights after separation. Equally, having those rights does not mean there is unlimited time to act on them.

Do De Facto Couples Have the Same Rights as Married Couples?

For financial matters following separation, the broad answer is yes. The Family Law Act was amended in 2009 to extend the court’s powers to deal with property settlement and maintenance for de facto couples.

That change matters because a relationship does not need to have involved a wedding for financial issues to require legal resolution. Former de facto partners may need to resolve questions about property and financial support, just as former married partners do.

Bruce Provan, Managing Director of Page Provan and an accredited family law specialist, explains the distinction in practical terms: the financial rights are broadly similar, but establishing the relationship and its relevant dates can be different.

Similar rights should not be confused with an identical process. A de facto couple may first need to resolve questions that a marriage certificate would make more straightforward for a married couple. Those preliminary questions can be particularly important when the deadline for a financial application is approaching.

What Changed Under the Family Law Act in 2009?

The 2009 changes concerned the court’s ability to make orders about the financial affairs of separated de facto couples. Those powers include orders dealing with:

• Property settlement: resolving financial and property matters after separation.
• Maintenance: dealing with a claim for financial support following the breakdown of the relationship.

The court now known as the Federal Circuit and Family Court of Australia can deal with these matters under the relevant provisions of the Family Law Act.

Children’s matters were not the new development in 2009. Issues concerning children of de facto couples had already been dealt with under the Act for many years. The significant change was the extension of the court’s financial powers.

This distinction helps explain why parenting issues and financial issues should not simply be treated as one question. The two-year deadline discussed here concerns applications for de facto property settlement and maintenance.

Why De Facto Relationship Dates Can Become an Issue

A marriage has a formal starting point recorded in a marriage certificate. At its legal end, there is a divorce. A de facto relationship does not have those same formal markers.

That difference can create an additional question before financial matters are resolved: was there a de facto relationship in the first place? If there was, when did it begin, and when did the parties separate?

Where the former partners agree on those matters, the dates may not become a point of dispute. Where they disagree, the court may need to determine them.

The relevant questions are therefore:

1. Did a de facto relationship exist?
2. When did that relationship begin?
3. When did separation occur?

These are not merely labels applied to a past relationship. They help establish the legal framework within which a financial claim is considered. In particular, the separation date determines when the two-year application period begins.

The Two-Year Time Limit Starts at Separation

For a separated de facto couple, the central timing rule is straightforward: an application for property settlement or maintenance must generally be made within two years of the date of separation.

The important event is separation, not divorce. De facto partners do not obtain a divorce to bring their relationship to a legal end, so there is no divorce process to provide a separate reminder that financial matters need attention.

It is also important to distinguish between discussing a settlement and applying for one. The deadline concerns making an application. Former partners should not assume that conversations about dividing property, or an intention to deal with matters later, answer the timing question.

This does not mean every separated couple needs to begin court proceedings immediately. It means the deadline should be identified early enough for informed decisions to be made. Advice obtained close to the end of the two-year period leaves less time to clarify the position and consider the next step.

What Happens if the Separation Date Is Disputed?

A disagreement about the separation date can become a disagreement about the deadline itself. If each former partner identifies a different date, each may also be working towards a different end to the two-year period.

That is why agreement about the date is useful, but an assumption about agreement is not enough. A date that seems clear to one person may not be accepted by the other.

Where agreement cannot be reached, the court may need to decide when separation occurred. The issue should therefore be raised early with a family lawyer, rather than left until an application is being prepared at the last moment.

The practical lesson is simple: uncertainty about separation should prompt advice, not delay. Establishing the relevant date is part of understanding the available financial options.

What Should Separated De Facto Partners Clarify?

Early advice can bring the relationship history and the financial questions into focus. A useful starting point is to identify:

• Whether both parties accept that they were in a de facto relationship.
• Whether they agree on when the relationship began and ended.
• Whether property settlement, maintenance or both need to be addressed.
• How much time remains before the two-year application deadline.

These questions do not determine the eventual settlement. They establish the issues that need attention and help prevent the time limit from being overlooked while other aspects of separation take priority.

Advice should address the particular relationship and circumstances, rather than rely solely on the broad statement that de facto and married couples have similar rights.

Similar Rights, but a Deadline That Matters

The central message is reassuring, but practical. De facto partners are not excluded from property settlement or maintenance simply because they did not marry. The Family Law Act provides a framework for resolving those financial matters.

The crucial difference is often proving the relationship and identifying its dates, especially separation. With a two-year application period, those questions deserve early attention.

For former partners seeking clarity about their position, contacting Page Provan can help identify the relevant issues and obtain advice before timing becomes an additional problem.