Family Law and Divorce

Understanding Separation Rights in New South Wales

When a relationship breaks down, understanding your legal rights is crucial—especially when it comes to dividing property, finances, and parental responsibilities. In New South Wales (NSW), both married couples and de facto couples have legal rights upon separation, but there are key differences in how these rights are applied.

Whether you are in a de facto relationship or legally married, knowing where you stand can help you make informed decisions about your future.

A de facto relationship is when two people – regardless of gender – live together as a couple but are not legally married. Under Australian family law, you are considered to be in a de facto relationship if:

• You have lived together for at least two years, or
• You share a child together, or
• Your relationship is registered under NSW law, or
• A court determines you had a significant interdependence, including shared finances, assets, and commitments.

Key Differences: De Facto vs Married Rights in Separation

While married couples and de facto couples share many of the same rights under the Family Law Act 1975, there are some important distinctions.

1. Property & Financial Settlements

Both married and de facto couples can seek a property settlement through the Family Court or Federal Circuit Court. However, de facto couples must first prove their relationship qualifies under the law before making a claim.

⏲ Time Limits:

• Married couples must apply for property settlement within 12 months of finalising their divorce.
• De facto couples have two years from the date of separation to apply for property division.

📈 Superannuation Splitting:

• Both married and de facto couples can split superannuation entitlements, but de facto couples might face additional hurdles in proving their relationship.

2. Spousal Maintenance

Spousal maintenance is financial support paid by one partner to the other after separation. Both married and de facto partners may be entitled to maintenance, but de facto partners must first prove:

• That their relationship qualifies under the Family Law Act and
• That they are unable to adequately support themselves due to factors such as caregiving responsibilities or financial dependency.

⏳ Time Limits:

• Married couples: 12 months after divorce.
• De facto couples: 2 years after separation.

3. Parental Responsibilities & Child Support

Parental rights and child support obligations are the same for both married and de facto couples. Decisions regarding:

• Parenting arrangements (who the child lives with and spends time with)
• Child support payments
• Parental responsibility

They are determined based on the best interests of the child, not the legal status of the parent’s relationship.

What If You Never Registered Your De Facto Relationship?

Unlike marriage, which is legally recognised once you obtain a marriage certificate, a de facto relationship is not always automatically recognised—especially if no legal documents exist.

If you did not register your relationship, you may need to prove it existed through:

• Shared bank accounts, bills, or rental agreements
• Joint assets, such as property or vehicles
• Evidence of cohabitation (e.g., shared addresses)
• Testimonies from friends or family about your relationship

If you are unsure whether your de facto relationship qualifies under the law, seeking legal advice is essential.

Do You Need to Go to Court?

In many cases, de facto and married couples can settle their separation out of court through:

• Mediation
• Binding financial agreements
• Consent orders

However, if disputes arise—such as disagreements over property division or child arrangements—legal intervention may be necessary.

Final Thoughts

Whether you are in a de facto relationship or legally married, your rights upon separation in NSW are similar—but de facto couples may need to take additional steps to establish their legal standing. If you are facing separation, seeking expert legal advice early can help protect your financial future and parental rights.

For personalised advice about your separation rights, contact our experienced family law team today at +612 9283 5599 or complete the call-back request form below.