De facto property claims in WA: the two-year rule, the WA connection and leave out of time

Most of what you read online about de facto property claims describes the Family Law Act 1975 (Cth). That Act's de facto property rules do not apply in Western Australia, because WA never referred those powers to the Commonwealth. A WA de facto couple's property claim is made under Part 5A of the Family Court Act 1997 (WA), a State law, in the Family Court of Western Australia.

The two laws look alike, but the differences matter most when a case is contested or late. This article covers the three questions the court asks before it will look at how the property should be divided.

Was it a de facto relationship?

The WA Act relies on the Interpretation Act 1984 (WA) s 13A. A de facto relationship is one between two people who share a home in a relationship like a marriage. The court weighs indicators such as:

(a) how long the relationship lasted and whether you lived together;

(b) whether there was a sexual relationship;

(c) how your finances were arranged, and whether one of you depended on the other; and

(d) how you presented to family and friends.

No single indicator decides the question. WA has no relationships register, so you cannot prove the relationship by pointing to a registration. Where the other party denies there was a relationship at all, that question is often decided first, and it is decided on evidence.

Does the relationship pass the gateway?

Under s 205Z the court can make a property order only if one of these applies:

(a) the relationship lasted at least two years;

(b) the couple have a child under 18, and the parent caring for that child would suffer serious injustice without an order; or

(c) the applicant contributed substantially, in money or otherwise, and would suffer serious injustice without an order.

When counting the two years the court must consider any break in the relationship, how long it lasted and how far the relationship broke down (s 205Z(2)). A couple who separated for several months and then got back together may find the other side arguing the clock restarted.

Is there a connection with WA?

Section 205X adds a second gate that catches people who move. The court must be satisfied that:

(a) at least one of you was a WA resident on the day of filing; and

(b) the two of you spent at least a third of the relationship living in WA, or the applicant's substantial contributions were made here.

Because of limb (a), if both of you have left WA by the time you file, a Part 5A case cannot be started here, however long you lived in Perth. If you are thinking of moving interstate, get advice about timing first.

The deadline: two years from separation

An application must be filed within two years after the relationship ended (s 205ZB(1)). There is also a 12-month period after a financial agreement between you is set aside or found invalid. If you both consent, a late application can go ahead without the court's leave. If that consent was obtained by fraud, duress or unconscionable conduct, the court may still throw the case out (s 205ZB(1A)).

The date of separation therefore matters twice. It starts the deadline, and it ends the period counted towards the two-year gateway. If it is disputed, it is a question for evidence: when you stopped sharing a bedroom, finances and a social life, and what each of you told others.

Leave to apply out of time

If the two years have passed and the other party will not consent, you need the court's leave. In WA there is only one ground. The court must be satisfied that hardship would be caused to you or to a child if leave were refused (s 205ZB(2)).

This is narrower than the federal rule. The Family Law Act gives a second ground for a maintenance claim, where the applicant could not support themselves without an income-tested pension or benefit. The WA Act has no such ground.

Hardship is not the end of the inquiry. Under the matching federal provisions, courts first ask whether refusing leave would cause hardship, which usually means showing you have a real claim worth bringing. Then they weigh other things: how late you are, why, and what the delay has done to the other party. An application for leave is filed with the property application and needs affidavit evidence explaining the delay and the claim.

No fallback claim in equity

Before Part 5A, some separated de facto partners sued in the Supreme Court for an equitable interest in a property. Section 205V now prevents a partner who is or was eligible to apply under Part 5A from doing that for the same property. If the WA Act's time limit passes, there is no claim in equity to fall back on.

Superannuation has its own rules

If you want to split super, that part of the case runs under Part VIIIC of the Family Law Act, not the WA Act. Part VIIIC has its own residence test, gateway and two-year time limit, and leave out of time is also on hardship only (s 44(9)). In practice both parts are dealt with together in one case.

Where a lawyer helps

The questions above decide whether the court can hear your claim at all. A lawyer will:

(a) fix the date of separation and gather the evidence for it;

(b) check the gateway and the WA connection before you file;

(c) send a notice of intention to claim in good time; and

(d) if you are late, prepare the leave application and the evidence of hardship.

The worst outcome is a strong claim lost on a deadline. If you are close to the two-year mark, act now and negotiate afterwards.

This article is general information about the law in Western Australia as at 27 October 2026. It is not legal advice about your situation.