The house is the biggest thing most couples share. It’s also, when things fall apart, the thing that causes the most confusion.
People assume that if you were never married, you were never legally bound. That the house belongs to whoever’s name is on it, or whoever paid more, or whoever didn’t leave. Those assumptions are understandable. They’re also wrong in ways that can seriously affect what happens to you.
What catches people out is this: property settlement has nothing to do with marriage. It’s a separate legal process, and it applies to de facto couples just as it applies to married ones. The rules come from the same federal legislation. The court looks at the same things. The outcomes follow the same framework.
So before you assume you have no claim, or that your ex has no claim on your house, consider what you actually know about how the law draws those lines.
This article covers when de facto property law applies, how the court thinks about the house specifically, what your rights are whether your name is on the title or not, and what you can do right now to protect your position.
Key Takeaways
- De facto couples have substantially the same property rights as married couples under the Family Law Act, including the right to seek property settlement through the court.
- Being on the title is not the same as being entitled to keep the house. Contributions, financial and non-financial, matter as much as legal ownership.
- There is a two-year time limit from separation to start property proceedings as a de facto couple. Missing it can shut you out of the court process entirely.
- Leaving the home does not extinguish your property rights. You can leave and still have a valid claim.
- The court does not automatically split everything 50/50. It looks for a result that is just and equitable, based on each person’s contributions and future needs.
- Children in the home can affect who stays there short-term, but parenting arrangements and property settlement are decided through separate processes.
Does it matter that we were never legally married?
For property settlement purposes, no. Not if your relationship qualifies as de facto under the Family Law Act.
This is the thing that surprises people most. They come in expecting to be told they have no rights because they never signed a certificate. What they find out is that the law has been treating de facto couples the same as married couples for property purposes for well over a decade.
Divorce is a process for ending a marriage. Property settlement is a process for dividing assets, and it runs completely separately. A married couple can do property settlement without yet being divorced. A de facto couple can do property settlement without ever having been married. The relationship type changes the threshold question, not the framework that follows.
What matters is whether your relationship meets the legal definition of de facto. If it does, you have access to the same property settlement process as a married couple. If it doesn’t, the house gets treated differently, and your options narrow.
Key Point: People confuse “we were never married” with “we have no legal relationship”. Those are different things. If you shared your life with someone for long enough, or have a child together, the law likely recognises that relationship whether or not there was a wedding.
Am I in a de facto relationship?
This is the threshold question, and it matters more than anything else in this article.
A de facto relationship exists when two people who are not married to each other and not related by family live together on a genuine domestic basis. The court looks at the whole picture, not just one factor. No single thing is conclusive.
The factors a court weighs up include:
- How long you lived together
- Whether you had a sexual relationship
- How your finances were arranged, separate or joint
- Whether you owned property together
- The degree of mutual commitment to a shared life
- Whether the relationship was known publicly as a couple
- Whether you cared for children together
Generally, a relationship of at least two years will meet the threshold. A shorter relationship may still qualify if there is a child of the relationship, or if one person made substantial contributions that would make it unjust to ignore a claim.
An on-and-off relationship where you largely kept separate lives, separate finances and separate residences may not meet the definition, even if it lasted several years. That matters, because if the relationship is not legally de facto, the house falls outside this framework entirely.
If you’re not sure whether your relationship qualifies, that is exactly the kind of question to bring to a lawyer early. Getting the threshold wrong can mean pursuing a claim that goes nowhere, or walking away from one that had real merit.
Expert Tip: Write down the timeline of your relationship before your first appointment. When did you move in together? Were there gaps? When did you separate? These dates do real work in answering the threshold question.
Can my ex take half the house if we were never married?
They can make a claim on it. Whether they succeed, and for how much, depends on the full picture.
The court doesn’t divide the house in isolation. It looks at the whole property pool: every asset and every debt that both of you have, individually and together. The house is part of that pool, but so is superannuation, savings, vehicles, investments and any other liabilities.
Once the pool is identified, the court assesses contributions. Financial contributions matter: the deposit, the mortgage repayments, the renovations. So do non-financial contributions: the partner who stayed home with the children while the other built their career, the person who did years of unpaid work maintaining the property, the one who gave up work to support the other’s business.
After contributions, the court looks at future needs. Who has the higher earning capacity going forward? Who has the primary care of the children? Who has health issues? Who gave up career progression during the relationship?
From all of that, the court works out what is just and equitable. That is not the same as 50/50. It may be 60/40. It may be more or less. It depends on the facts of your specific situation.
So can your ex take half? Possibly, if the contributions and circumstances support it. But there is no automatic entitlement to half, and there is no automatic protection of whatever percentage you put in.
Key Point: The question “can they take half? ” is really two questions: do they have a claim at all, and if so, how much? The answer to both depends on facts, not assumptions.
Does it matter whose name is on the title or the mortgage?
Less than most people think.
Legal title tells you who owns the property at law. It does not determine what share of the property’s value each person is entitled to as a result of the relationship. These are separate questions.
Someone who is not on the title can still have a strong claim if they contributed significantly, financially or otherwise, during the relationship. Someone who is on the title does not automatically keep the full value just because they are the registered owner.
Think about a common situation: your partner’s credit history was better, so the loan and title went in their name. You paid rent equivalent amounts into the household, covered groceries and bills, and took time out of the workforce when the children came. You are not on the title. Under the property settlement framework, those contributions are real and they count.
The mortgage is similar. Being on the mortgage means you have a legal obligation to the lender. It says nothing about what share of the equity you walk away with after settlement.
Expert Tip: If you contributed to the property financially or through unpaid domestic labour, start gathering evidence of that now. Bank statements, payslips, records of renovations, photos, anything that documents what you put in.
What if the house is only in my ex’s name?
You are not automatically out of luck.
If your relationship qualifies as de facto, your contributions during that relationship, financial and non-financial, are considered as part of the overall property pool. The fact that the house was never put in your name does not mean your contributions to it are invisible to the court.
This can feel counterintuitive. The title says one name. But the law recognises that property within a relationship is often acquired and maintained through the combined effort of two people, even where the paperwork reflects only one.
What you will need to demonstrate is that the relationship was genuinely de facto, and that you made real contributions, directly or indirectly, to the acquisition or maintenance of the property, or to the household and family more broadly.
If the relationship is short, there is no child, and your contributions were minimal, the position changes. A very short de facto relationship with limited shared life may result in the house being treated more like the legal owner’s sole asset. That is not universal, but it is a real risk worth understanding.
Key Point: “It’s not in my name” is a starting point, not an ending point. What matters is what you contributed and what a just outcome looks like given everything, not just what the title says.
What if the house is in both our names?
Being on the title together is significant, but it still doesn’t determine the outcome alone.
When a property is jointly owned, each of you already has a legal interest in it. That means neither of you can unilaterally sell the property, transfer it, or take out further borrowing against it without the other’s agreement or a court order.
What joint ownership does not tell you is how the equity gets divided in a settlement. You might each own 50% at law, but the property settlement process might produce a different split based on contributions and future needs.
Joint ownership also means that if you cannot agree on what to do with the house, either of you can apply to the court. In some circumstances, the court can order a sale even if one of you does not want to sell. That is a last resort, and it comes with cost and delay, but it is available.
Expert Tip: If you’re jointly on the title and the relationship has broken down, do not agree to transfer your interest without legal advice. Once you sign it away, recovering it is very difficult.
Can I stay in the house while we sort out property settlement?
Yes, and leaving does not automatically give up your rights.
This is one of the most important things to understand. If you feel safer leaving, or you simply need to, you do not forfeit your property claim by doing so. The law does not treat departure as abandonment of your interest.
That said, who lives in the house during the settlement process can become its own dispute. If you are both on the title, you both have the right to be there in a legal sense. In practice, living together after separation is often unworkable.
If one of you needs to leave for safety reasons, or the situation at home has become untenable, you can apply to the court for a sole occupation order. This is a court order that gives one person the right to live in the home and excludes the other, at least temporarily, while the property settlement is worked through.
If there has been family or domestic violence, there are also protection orders available through the Queensland Magistrates Court. Those orders can directly address who lives in the home and under what conditions. Getting safe is the first priority. Property rights do not disappear while you do that.
Key Point: Leaving the house is sometimes the right call for your safety or your sanity. It does not mean you’ve given up your share. Get legal advice before assuming otherwise.
What happens to the kids and the family home if we separate?
The short answer is that parenting arrangements and property settlement run through separate processes, but they connect in practice.
In property settlement, the court can consider that one parent will have the primary care of the children when working out what is just and equitable. That might affect who keeps the home or what each person needs going forward, particularly in terms of housing stability for the children.
There is no automatic rule that the parent the children live with keeps the house. But the court does look at housing needs as part of assessing future circumstances. If selling the home would disrupt the children’s schooling or stability in a significant way, that can factor into whether a deferred sale arrangement makes sense.
A deferred sale is exactly what it sounds like: the court agrees the house won’t be sold immediately, usually until the youngest child finishes school or reaches a set age, and then it is sold and the proceeds divided. One parent stays living there in the meantime, often continuing to meet the mortgage.
This is not the only option. Sometimes one parent buys out the other’s share. Sometimes the house is sold and both parties rehouse. What happens depends on the financial circumstances of both people and what is actually workable.
Expert Tip: If the children’s stability in the current home matters to you, document it. Their school enrolment, friendships, routine, community ties. These are practical factors a court or a negotiation can take into account.
What am I actually entitled to from the house and our other assets?
No lawyer can tell you that in the abstract. Anyone who gives you a number before looking at the full picture is guessing.
What the law requires is a just and equitable outcome based on the whole property pool. The court applies a framework:
- Identify all assets and debts, including superannuation.
- Assess each person’s contributions, financial and non-financial, throughout the relationship.
- Consider future needs: income capacity, health, care of children, age.
- Work out what percentage split is just and equitable overall.
Superannuation is part of this. Even if your super is in your name, it goes into the pool. The same applies to your partner’s super.
What you’re “entitled to” is the share that reflects your contributions and your future needs weighed against your partner’s. That might be close to 50/50. It might not be.
If you contributed more to acquisition, or you have the primary care of the children going forward with limited earning capacity, those things push in your favour. If your partner funded most of the deposit from pre-relationship assets, that may pull the other way.
Key Point: “Entitled to” in family law means entitled to a fair outcome based on what you put in and what you face ahead, not a guaranteed percentage.
How long do I have to sort out the property settlement?
If you were in a de facto relationship, you generally have two years from the date of separation to start property proceedings.
This is not a soft deadline. If you miss it, you need the court’s permission to proceed, and that permission is only granted in limited circumstances, where you can show real hardship would result from not allowing the claim.
People often drift past this deadline without realising it. They stay living together for a while after things break down. They try to sort it out themselves. They assume there’s more time. By the time they realise the deadline is real, they can be up against it.
Two years sounds like a long time. In practice, it moves quickly, especially if you spent months trying to negotiate informally.
The date of separation can itself be contested if you continued living under the same roof after things broke down. Getting that date right matters, because the clock runs from there.
Expert Tip: If you’re approaching two years from when you separated, do not wait. Get advice now. The permission process for a late application is uncertain and it’s far simpler to act within time.
What if we were together less than two years or have no children?
You may still have a claim, but the threshold test becomes harder to meet.
Ordinarily, a de facto relationship requires at least two years of cohabitation to access property settlement through the Family Law Act. But there are two exceptions: a child of the relationship, or substantial contributions that would make it unjust not to allow a claim.
If your relationship was shorter than two years, you have no children together, and your financial lives were largely separate, the house may be treated as the legal owner’s asset. Another basis for a claim, such as a constructive trust under general property law, might exist, but that is a more complex and less certain avenue.
Short relationships with significant asset mixing are worth getting advice on. Don’t assume you have nothing just because you weren’t together long, but don’t assume you have a claim either.
Key Point: A short relationship is not automatically a dead end, but it raises real questions about whether the de facto threshold is met. Get that question answered before you assume anything.
Can we just agree between ourselves who keeps the house?
You can reach an agreement, but a handshake deal is not legally binding.
If you and your ex agree on what happens to the house and everything else, that is a good outcome. Litigation is expensive, slow and hard on everyone. Agreement is almost always preferable.
But the agreement needs to be formalised properly to be enforceable. There are two main ways to do that.
Consent orders are filed with the Federal Circuit and Family Court of Australia. The court approves the agreement and makes it into orders. Once those orders are made, they bind both of you and can be enforced.
A binding financial agreement is a contract drawn up with the involvement of lawyers on both sides. It doesn’t need court approval, but both parties must receive independent legal advice before signing.
An informal agreement, even a written one, is not enforceable in the same way. If one person changes their mind later, there is nothing to stop them coming back for more.
Expert Tip: If you’ve reached agreement, formalise it properly before the two-year deadline. Agreement plus proper documentation is the best outcome. Agreement without documentation is a risk.
What if we bought the house before we moved in together?
Property that one person owned before the relationship is a real factor, but it is not automatically quarantined from the pool.
The court does consider when and how assets were acquired. A property owned outright before the relationship, with no mortgage paid down using joint funds, and no work done during the relationship, is treated differently from a property that both people contributed to for years.
But if the other partner moved in, contributed to mortgage repayments, maintained the property, or provided unpaid domestic labour that freed the owner up to work, those contributions still count in the overall assessment.
The longer the relationship and the more intertwined the finances, the less the pre-relationship origin of an asset protects it from the pool.
Key Point: Bringing an asset into the relationship doesn’t automatically protect it forever. What happened during the relationship matters too.
What if my family helped us buy the house?
This comes up often and it affects the contribution assessment.
If one partner’s parents contributed to the deposit, or gifted money that went into the property, that is usually recognised as a contribution by that partner. It may mean their share of the property pool is weighted more heavily in their favour.
The way the contribution is structured matters. A genuine gift is treated differently from a loan. If the parents say it was a loan but there is no written agreement and no repayments were made, a court may treat it as a gift.
If your family contributed money to the purchase and you are now separating, document it. Find any records of the transfer, any correspondence about what was intended, and any history of repayments. Bring that to your first conversation with a lawyer.
Expert Tip: Family gifts and contributions to property purchase are one of the most contested areas in property settlement. Get the records together early. The older they are, the harder they are to reconstruct.
What happens to the mortgage, bills and debts after we separate?
Separation does not change your obligations to the lender.
If you are both on the mortgage, you are both liable for the full amount, regardless of who is living in the house. The bank does not care that you have separated. If payments are missed, both of your credit records are affected.
The same applies to joint debts more broadly. Joint credit cards, joint loans, joint accounts. Separation does not sever those obligations at law until a formal settlement is reached and the accounts are properly dealt with.
In the short term, many couples agree informally on who pays what while the settlement is being sorted out. That can work if both people are acting in good faith. It is not enforceable, and it doesn’t change the underlying liability.
If your ex stops paying their share of the mortgage, you may need to cover it yourself to protect the property and your credit history, and then seek to recover that overpayment as part of the settlement.
Expert Tip: If the mortgage is in both names and you’re worried about payments being missed, speak to the lender early. Some lenders will discuss hardship arrangements, and it’s better to engage them before a default, not after.
Can I be forced to sell the house, or can I force a sale?
If you can’t agree, the court has the power to order a sale.
Neither of you can force the other to sell, or refuse to allow a sale, permanently. If agreement is impossible and the matter ends up in court, the judge can make orders about what happens to the property. That includes ordering a sale at market value, appointing an agent, and directing how the proceeds are divided.
This is not where most people end up. Most property settlements are resolved through negotiation or mediation before a judge needs to decide. But the court’s power to order a sale is real, and it means that holding out indefinitely is rarely a winning strategy.
If one of you wants to buy the other out, that can be structured as part of the settlement. The person buying out the other usually needs to refinance into their own name, which requires the lender’s approval.
Key Point: If negotiations are stuck, the court can break the deadlock. That costs time and money. Most people are better served by getting to a negotiated outcome, even an imperfect one, than waiting for a judge.
What if there has been family or domestic violence?
Your safety comes first. Property rights wait.
If you have left the home because of family or domestic violence, you do not lose your property claim. Leaving to stay safe is not abandonment. A court will not penalise you for protecting yourself.
If you need to stay protected while the property is sorted out, a domestic violence order from a Queensland Magistrates Court can address your safety and, in appropriate cases, who occupies the home. The Federal Circuit and Family Court of Australia can also make sole occupation orders as part of property proceedings.
If you are in immediate danger, contact the police. For urgent safety planning, 1800RESPECT (1800 737 732) provides support around the clock.
Once you are safe, the property process can begin. The two things can run at the same time.
Key Point: Domestic violence changes the practical order of priorities, not the legal framework. You still have rights to property settlement. You deal with safety first, then the legal steps follow.
How long does a de facto property settlement take and what will it cost?
Honestly, it depends almost entirely on how much you and your ex can agree on.
A fully negotiated consent order, where both parties work through the issues with legal help and reach agreement, might take a few months from start to finish. Straightforward situations with limited assets and goodwill on both sides can move relatively quickly.
If the matter is contested, the timeline extends. Mediation adds time but is far cheaper than court. If the case goes to a final hearing before a judge, you are looking at years in some cases, not months, and legal costs that can run to tens of thousands of dollars or significantly more depending on complexity.
The thing that drags matters out most is not legal complexity. It is usually one of two things: one party refusing to engage in good faith, or informal arrangements that drift on until the two-year deadline is suddenly real.
The earlier you get proper advice, the better positioned you are to resolve things efficiently. That’s not a marketing line. Lawyers who see matters early have more options. Lawyers who see matters at the deadline have fewer.
For a confidential conversation about your situation and what the process realistically looks like for you, contact the C + K Family Lawyers team.
Expert Tip: The cost of a contested property settlement almost always exceeds the cost of a negotiated one, often by a significant margin. The question is not whether you can afford good advice early. It’s whether you can afford not to get it.
What can I do tonight to protect yourself and the house?
You don’t need to have everything worked out. You need to start gathering the right information.
Tonight, or this week, do these things:
- Write down the key dates. When did you move in together? Were there periods apart? When did you separate? These dates do real work.
- List the assets and debts you’re aware of: the house, any other property, vehicles, savings, superannuation, loans, credit cards. Both yours and your partner’s where you know them.
- Gather what documents you can access: mortgage statements, rates notices, the title if you have it, bank statements showing contributions to the mortgage or household expenses.
- Do not make any big decisions about the house before getting advice. Don’t agree to sell, don’t transfer your interest, don’t stop paying the mortgage without understanding what that means.
- Do not move out assuming you’ve lost your rights. You haven’t. But get advice on your specific situation before making that call.
The one question people almost never ask in that first meeting, but should, is this: what do I need to do right now to preserve my options? That question has a practical answer and it’s worth asking early.
If you’re ready to talk through your situation, the C + K Family Lawyers team offers confidential consultations with no obligation. Reach out when you’re ready.
Frequently asked questions
If I move out of the house, do I lose my rights to it?
No. Leaving the home does not extinguish your property rights. You can still make a claim on the property as part of a de facto property settlement, as long as you act within the two-year time limit from the date of separation and your relationship meets the de facto threshold. If you left for safety reasons, that makes no difference to your legal position.
We’ve been together for 18 months and have no children. Do I still have property rights if we split up?
Possibly, but it’s less certain. The usual threshold for a de facto relationship under the Family Law Act is two years of cohabitation, a child of the relationship, or substantial contributions that would make it unjust not to allow a claim. At 18 months with no children, you may need to demonstrate substantial contributions to cross that threshold. Get advice specific to your situation rather than assuming either way.
The house is in my name only. Can my ex still claim a share?
Yes, if the relationship qualifies as de facto. Legal title and financial entitlement are separate questions. A court will look at the contributions both of you made during the relationship, financial and non-financial. If your ex contributed meaningfully, directly or indirectly, to the property or the household, those contributions are part of the picture.
What happens if we can’t agree on what to do with the house?
If negotiation and mediation don’t produce an agreement, either of you can apply to the Federal Circuit and Family Court of Australia for property orders. The court has the power to determine how the property pool is divided and, if necessary, order a sale of the home. Most matters resolve before that point, but the court’s power exists as a backstop.
Is there a time limit on sorting out our property settlement?
Yes. As a de facto couple, you generally have two years from the date of separation to start property proceedings. After that, you need the court’s permission to proceed, which is not guaranteed. If you’re approaching that deadline or unsure when the clock started, get advice immediately.
This article is general information only and is not legal advice. Family law outcomes depend on your individual circumstances. For advice about your situation, speak with a qualified family lawyer.
About the Author
Christopher (Chris) Jones is the Principal Lawyer and co-founder of CK Family Lawyers, a Queensland family law firm. Chris advises on divorce, property settlement, parenting arrangements, binding financial agreements, mediation and domestic violence matters. After working in legal environments where clients felt depersonalised and lost in jargon, he co-founded the firm with Krystina Jones on the belief that people deserve family lawyers who genuinely care, and he works directly with his clients throughout their matters.
