A de facto property settlement under the Family Law Act 1975 (Cth) is not a simplified version of married property proceedings; it is a distinct regime with qualifying conditions that can terminate an application before the merits are ever considered. Consider a two-year de facto relationship, no children, a $200,000 intermingled account, and no registered partnership. An adviser who reaches for s 90SM without first confirming the s 90SB threshold conditions may discover, after the limitation period has expired, that federal jurisdiction never arose. The application is dismissed. Leave to apply out of time under s 44(5) is rarely granted, and a client left without any property remedy because their adviser conflated the two regimes has a legitimate grievance about the advice they received.
Section 90SJ of the Family Law Act 1975 (Cth) is the jurisdictional gateway. Before the court can make any order, it must be satisfied that the relationship qualifies as a "de facto relationship" under s 4AA, namely two adults living together on a genuine domestic basis, otherwise than as relatives, and that a geographical nexus condition is met, most commonly that the parties were ordinarily resident in a participating jurisdiction when the relationship ended.
Western Australia remains the critical carve-out. WA did not refer its legislative powers to the Commonwealth and administers its own de facto property regime under the Family Court Act 1997 (WA). Relationships centred in WA fall outside the Family Law Act 1975 (Cth) framework entirely, and applications in those matters must be brought in the Family Court of Western Australia under state law.
Even where federal jurisdiction is established, the court has no power to make property orders unless one of the conditions in s 90SB is satisfied. The primary condition is that the de facto relationship lasted at least two years. The alternatives are a child of the relationship, substantial contributions coupled with serious injustice if no order is made, or registration of the relationship under a state or territory law.
In Sinclair v Hendrie [2010] FamCAFC 110, the Full Court confirmed that the s 90SB conditions are mandatory prerequisites to jurisdiction rather than matters of discretion. A short de facto relationship with no children, no registration, and modest contributions produces no federal property remedy regardless of how the parties conducted their finances. That conclusion is not a finding on the merits; it forecloses proceedings at the threshold.
The two-year limitation in s 44(5) compounds the risk. An application for property settlement must be filed within two years of the date the relationship ended. The date of ending is itself often contested, as courts have accepted that a de facto relationship can continue in some circumstances after physical separation, which means the limitation clock may be running while the factual question is unresolved. Leave to apply out of time is available but not readily granted. In Jonah v White [2011] FamCAFC 221, the Full Court confirmed that hardship must be more than mere inconvenience. A client who delayed because the dispute seemed manageable without litigation will struggle to satisfy that standard, and a practitioner who has not flagged this early in the retainer is exposed.
Note: Clients frequently assume the limitation period runs from the date of a formal demand or the breakdown of negotiation. It runs from the date the relationship ended, which the client and the other party may recall differently. Establishing the correct date, and documenting it, is a threshold step in any de facto matter, not a later refinement.
Section 90SM empowers the court to make such orders as it considers just and equitable altering the parties' interests in property. The four-step approach articulated in Hickey & Hickey [2003] FamCA 395, identifying the net asset pool, assessing contributions, considering s 90SF(3) future needs adjustments, and confirming the overall outcome is just and equitable, applies directly in de facto matters on the same doctrinal footing as s 79 in the married regime.
The just and equitable requirement is a distinct and mandatory step, not a description of whatever the arithmetic produces. Stanford v Stanford [2012] HCA 52 established this in the s 79 context with clarity: a court cannot make an order altering property interests simply because alteration would be arithmetically defensible if the overall result, having regard to the relationship and its circumstances, would not be just and equitable. That reasoning applies with equal force under s 90SM, and submissions that treat the just and equitable inquiry as self-evidently satisfied by the contribution assessment misread what the High Court held.
Contribution methodology under s 90SM(4) is the contested terrain in short de facto relationships, and this is where practitioners most need to work from the judgment rather than a summary. Mallet v Mallet [1984] HCA 21 established the broad framework for weighing financial and non-financial contributions, but the Full Court's subsequent approach to homemaker contributions in short relationships, where no children are involved and one party brought substantially all the asset base, has not settled into a uniform methodology. Decisions diverge on how much weight attaches to non-financial contributions over a two-year or three-year relationship, and the answer in any given case turns on which Full Court decisions are factually analogous and whether those decisions represent the current position or have been qualified by later authority.
Future needs adjustments under s 90SF(3) parallel the s 75(2) factors: age, health, earning capacity, care of children, and the standard of living during the relationship. Where the relationship was short and the parties have comparable earning capacity, the s 90SF(3) adjustment is often modest, but this cannot be assumed without examining the pool composition and the parties' actual post-separation circumstances.
Superannuation interests are dealt with under Family Law Act 1975 (Cth) Part VIIIA, which applies to de facto couples on the same basis as married couples. A splitting or flagging order can be made in de facto property matters, and superannuation should be assessed as part of the overall pool as a matter of course, particularly where one party has built significant interests over a longer relationship or a high-income career.
Consent orders carry the same binding effect as litigated orders once approved and attract the stamp duty concessions available on family law property transfers. Where the parties are broadly agreed on division, consent orders are the efficient path. The s 90SB threshold conditions and the s 44(5) limitation period apply equally to consent order applications, which clients sometimes do not appreciate.
A practitioner who needs to know whether the Full Court has moved on from an earlier position on homemaker contributions in short de facto relationships, and what the current line of authority actually says at paragraph level, can retrieve that analysis in Habeas, cited to the specific decision and paragraph, without risking a superseded citation in submissions.
The legal research in this article was conducted and every citation verified using Habeas, the Australian legal AI research platform.
Hero image: Brenton Pearce on Unsplash
