> ## Documentation Index
> Fetch the complete documentation index at: https://help.rytz.com.au/llms.txt
> Use this file to discover all available pages before exploring further.
# De facto pathway
> Property settlement under s90SM for de facto couples — the threshold question (was the relationship de facto?), the 24-month limitation period, the practical differences from s79 married-couple matters.
import { CardGroup, Card, Note, Tip, Warning } from '@mintlify/components'
For couples who were never married, property settlement runs under **section 90SM** of the Family Law Act 1975 (Cth) rather than s79. The substantive framework is essentially the same — same four-step process, same case-law line. The procedural differences (different limitation period, threshold question on de facto status) matter and are covered here.
## The threshold question — were you in a de facto relationship?
Section 4AA of the Act defines de facto relationship. Section 4AA(2) sets out nine factors the court weighs to determine whether the parties had "a relationship as a couple living together on a genuine domestic basis":
| s4AA(2) | Factor |
| ------- | --------------------------------------------------------------------------------------------------------------------------------- |
| (a) | The duration of the relationship |
| (b) | The nature and extent of their common residence |
| (c) | Whether a sexual relationship exists |
| (d) | The degree of financial dependence or interdependence, and any arrangements for financial support, between them |
| (e) | The ownership, use and acquisition of their property |
| (f) | The degree of mutual commitment to a shared life |
| (g) | Whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship |
| (h) | The care and support of children |
| (i) | The reputation and public aspects of the relationship |
The factors are weighed holistically. **Not all need to be present** for a relationship to be de facto, and conversely the presence of some factors doesn't automatically establish a de facto relationship.
A few clarifications worth noting:
* A de facto relationship can exist between people of different sexes or the same sex
* A de facto relationship can exist even where one party is married to someone else, or already in another de facto relationship
* "Living together" does not require continuous cohabitation — the High Court in *Fairbairn v Radecki* \[2022] HCA 18 held that the test refers to a commitment to share lives, not merely physical presence under one roof
* The 2-year duration is the typical threshold for property-jurisdiction purposes (s90SB), but shorter relationships qualify where there is a child of the relationship or substantial joint contribution
The Settlement Planner asks structured questions on each factor and produces a structured assessment of de facto status if it's contested.
## When the threshold matters
Most matters don't contest de facto status. The parties accept they were in a de facto relationship and proceed straight to the property analysis.
The threshold matters when one party disputes the relationship's de facto character — usually to avoid s90SM jurisdiction (and therefore property orders). Threshold disputes are typically:
* The relationship was short and the parties never lived together full-time
* The financial entanglement was minimal
* Either party already had a marriage or another de facto relationship at the same time
* One party views the relationship as casual; the other as de facto
In contested-threshold matters, the court determines de facto status as a preliminary question before any property analysis.
## The 24-month limitation period
Section 44(5) of the Act imposes a **24-month limitation period** from the date of separation for de facto property applications.
This is significantly tighter than the 12-month-from-divorce period for married couples. Three reasons:
* There's no divorce process to start the clock; it starts at separation
* 24 months is a relatively short window to negotiate, attempt FDR, and prepare an application
* Self-represented parties often underestimate how fast 24 months passes
See [Limitation periods](/settlement-planner/limitation-periods) for the broader framing.
## Substantive differences from s79
Most of the framework is the same. A few differences worth noting:
s90SE provides for de facto spousal maintenance but the threshold for jurisdiction is slightly different. Specialist input where this is in issue.
For shorter de facto relationships, initial contributions (what each party brought into the relationship) typically retain more weight than they would in a long marriage. The Polonius / Bonnici erosion is shorter.
s90SF(3) (the de facto future-needs equivalent of s75(2)) has the same factors but courts often weight future-needs adjustments somewhat differently in shorter relationships.
For couples with children from prior relationships, the parental-contribution analysis can be more complex. The Settlement Planner's prompts adapt where the matter has step-parenting or blended-family aspects.
## Substantively the same
Many things are unchanged:
* Same four-step framework (Asset Pool → Contributions → Future Needs → Just and Equitable)
* Same case-law line (Stanford, Mallet, Pierce, Polonius, Kennon, Kowaliw)
* Same 10-June-2025 codification of the framework
* Same family-violence-as-express-property-consideration provisions
* Same companion-animal provisions
* Same enhanced-disclosure obligations
For most de facto matters, the analysis runs through the Settlement Planner exactly as it would for a married-couple matter — the platform branches on the relationship type set in the Master Case File and adapts the legal references accordingly.
## Common de facto-pathway issues
**Couples who never lived together full-time.** The cohabitation factor is one of the s4AA considerations but not always decisive. Couples who maintained separate residences but had everything else of a de facto relationship may still qualify; it's case-by-case.
**Relationships overlapping with marriages.** A de facto relationship can run alongside a subsisting marriage to a different person. The Act recognises this; the property analysis applies to the de facto pool separately from the marital pool. Specialist input where this is the situation.
**Relationships that lasted under 2 years.** Generally not de facto for property-jurisdiction purposes unless there's a child of the relationship or a substantial joint contribution. Don't assume short relationships are out of scope; check.
## Sample de facto pathway flow
A simplified example. Couple separates after 6 years of cohabitation, no children, modest pool (\$280K including super):
1. **Threshold** — Was the relationship de facto? Both parties accept yes; uncontested. Skip the threshold analysis.
2. **Limitation** — 24 months from separation. Master Case File records separation date; platform tracks the deadline.
3. **Pool** — Modest pool: shared savings, two vehicles, joint household contents, both parties' super. Document import wizard auto-populates from member statements + bank statements.
4. **Contributions** — 6-year relationship; substantially equal financial contributions; equally weighted homemaker contributions. Likely 50/50.
5. **Future needs** — Both parties similar age, similar income, no dependents. Minor adjustments at most.
6. **Just and equitable** — 50/50 likely upheld.
7. **Outcome** — Equal share of pool, super-splitting order to balance the super disparity, consent orders filed within the 24-month window.
The Settlement Planner walks the same flow, scoped to the de facto framework throughout.
## What's next
The four-step framework — same shape regardless of married vs de facto.
The 24-month clock for de facto matters.
Same substance as s90SM; named for the more-common married pathway.
Where most of the substantive analysis runs.