Last updated: April 2025 • 8-minute read
1. Why the Distinction Matters
When a relationship ends, the question isn’t simply “Who keeps what?”—it’s “Which legal rules apply?”
In Victoria (and across Australia), married couples (“de jure”) and de facto couples fall under the same umbrella of federal law—the Family Law Act 1975 (Cth)—but the pathways, time-limits, and evidence requirements differ. Misunderstanding these differences can cost you time, money, and peace of mind.
2. Quick Definitions
| Term | What it means under the Family Law Act |
|---|---|
| De jure relationship | A relationship formalised by marriage (including overseas marriages recognised in Australia). |
| De facto relationship | A couple (opposite- or same-sex) living together on a “genuine domestic basis” for ≥ 2 years, or with a child, or where significant contributions (financial or otherwise) justify an order. |
3. Jurisdiction & Time-Limits
| Issue | Married Couples | De Facto Couples |
|---|---|---|
| Court | Family Court / Federal Circuit and Family Court of Australia (FCFCOA) | Same |
| Limitation Period | 12 months from the date the divorce becomes final | 2 years from the date of separation |
| Extension of Time? | Possible, but court must be satisfied hardship would occur | Possible on similar hardship grounds |
Tip: If you miss these windows, you must apply for special leave—an extra hurdle that can often be avoided with timely advice.
4. How the Court Decides a Property Split
The FCFCOA follows a 4-step approach for both de jure and de facto matters:
- Identify & value the property pool
All assets and liabilities—joint and separate—plus superannuation. - Assess contributions
Financial (income, inheritances) and non-financial (homemaking, child-rearing). - Consider future needs
Age, health, income-earning capacity, care of children. - Ensure the outcome is “just and equitable.”
While the test is identical, proving you’re in a de facto relationship often requires extra evidence (joint leases, shared finances, social perception, etc.). Married couples don’t face that threshold question.
5. Superannuation Splitting: A Victorian Quirk
Super can be split in both relationship types, but de facto couples must first lodge a “Superannuation Interest” form with the fund. Married couples can use a simpler court order or binding agreement.
Translation: more paperwork and lead time for de facto splits—start early.
6. Spousal Maintenance
Both categories may claim maintenance, yet eligibility pivots on need vs. capacity to pay.
- Married: Claim must be filed within the same 12-month post-divorce period.
- De facto: Must be lodged within 2 years of separation.
7. Protecting Your Rights Early
| Proactive Step | Why It Helps |
|---|---|
| Document your contributions (bank statements, receipts, caregiving logs) | Strengthens your case during Step 2 |
| Consider a Binding Financial Agreement (pre- or post-nup / cohab agreement) | Can predetermine the split and sidestep litigation |
| Seek legal advice before moving out | Decisions about the home can affect occupancy & sale orders |
| Act within time-limits | Saves on costly “out-of-time” applications |
8. Frequently Asked Questions
Q: We lived together 18 months but bought a house—are we de facto?
A: Possibly. Significant financial contributions (like property) can trigger de facto jurisdiction even under 2 years.
Q: Do I automatically keep my pre-relationship savings?
A: Not necessarily. They’re part of the asset pool but weighted as an initial contribution in your favour.
Q: Can we avoid court?
A: Yes. Most Victorian couples resolve matters via Consent Orders or a Binding Financial Agreement—often quicker and cheaper.
9. Key Takeaways
- Same Act, different hurdles: Both relationship types are covered by the Family Law Act 1975, but de facto couples must first prove the relationship.
- Time matters: 12 months post-divorce vs. 2 years post-separation.
- Evidence & planning pay off: Early documentation and legal advice reduce stress and cost.
10. Need Help Navigating Your Property Settlement?
At PRAEVO Lawyers we combine compassionate guidance with sharp legal strategy—whether you’re de facto or de jure.
📞 Call (03) 9671 4554 • ✉️ info@praevo.com.au • 🌐 praevo.com.au/contact
Move forward with clarity, confidence, and the right team by your side.
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Disclaimer: This blog provides general information only and is not legal advice. Always speak with a qualified lawyer about your specific circumstances.