Introduction
Q1: We broke up and got back together about twenty times. Does that shrink my share?
A: Short break-ups do not reset the clock. A judge who treats each separation as the end of the relationship, and only counts what you did while you lived together, has made an error of law. Reference: Whiton & Dagne [2019] FamCAFC 192
Q2: I looked after the kids on my own during the times we were apart. Does that count for anything?
A: Raising children on your own counts, and it often counts for a lot. Those years are usually what made the other person's earning possible. Reference: Trask & Westlake [2015] FamCAFC 160
Q3: We never married. Will a judge value what I did less than if we had?
A: A de facto partner's contributions carry exactly the same weight. The section that covers de facto property settlement works the same way as the section for married couples. Legal basis: Section 90SM of the Family Law Act 1975
Do short break-ups end a de facto relationship for property settlement?
Plenty of de facto relationships run hot and cold, with one person moving out, moving back in, and doing it again. A break-up followed by a reconciliation does not wipe out what you did in between, because the question for a property settlement is not how many times you split up but what each of you actually contributed across the whole period.
This is where the trial judge went wrong in Whiton & Dagne [2019] FamCAFC 192. He treated the relationship as a string of separate episodes rather than one long relationship with interruptions, then counted the wife's contributions only for the stretches when the couple lived under the same roof.
The Full Court described the problem directly:
"As will be discussed, it appears the trial judge equated each separation with the de facto relationship having then ended, for the purpose of assessing contributions."
That framing shaped everything that followed. Once each separation was treated as an ending, the wife's years of raising the children and paying her way during the periods apart simply dropped out of the calculation.
The couple started living together in July 1998 and finally separated on 26 October 2016, about eighteen years later. Their first child was born in 1999 and the second in 2000. On the trial judge's own findings they actually lived together for around 12.5 years of that period. The wife's case was that the relationship was punctuated by family violence from the husband, which led to about twenty periods of separation. The trial judge accepted her evidence about the violence and rejected the husband's denials about how bad it was.
The husband's position was that the relationship had ended and restarted many times, so it should not be treated as an eighteen year partnership. The trial judge agreed with that framing and said the wife had overstated the nature of the relationship. He then divided the property 75 per cent to the husband and 25 per cent to the wife.
Outcome: Appeal allowed and the case sent back for a rehearing. The wife had been the primary carer for both children throughout, including during every period of separation, and she had worked and supported the children financially at the same time. Counting her contributions only for the periods of cohabitation was an error. The husband was also ordered to pay her costs of $13,773.17.
The practical lesson is that a judge has to look at the relationship as a whole. The Full Court put the point plainly when it said the wife maintained her contribution as the primary homemaker and parent for the children, irrespective of any period or periods of separation of the parties.
Do homemaking and parenting contributions count during a de facto separation?
One of the most common misunderstandings in property settlement comes from the person who earned the money, who often assumes that everything they built while living apart belongs to them alone. Australian law does not work that way: looking after children does not stop being a contribution the moment someone moves out.
The clearest statement comes from Trask & Westlake [2015] FamCAFC 160, where the Full Court rejected the idea outright:
"In particular, the notion '... that the contribution of the homemaker and parent ceases upon the separation of the parties...' involves '... a serious misreading of s 79(4)(c)'."
The Full Court went further and explained why a dollar comparison misses the point. Working out what percentage of the pool came from one party's post-separation cash injections can be a useful measuring stick, but the assessment of contributions stays a matter of judgment and not of computation. You cannot put a number on years of single parenting, and the absence of a number does not make those years worth less.
The parties had been married about eleven years and had lived together about thirteen. They had four children, aged roughly 15, 13, 11 and nine when they separated in February 2009. During the relationship they had agreed that the husband would chase career opportunities and the wife would be the homemaker and primary carer, which meant moving house and moving country to follow his work.
After separation the husband took a senior role with a new employer and his income increased markedly from what was already a very high base. Around his later retrenchment he received sums totalling $2,577,000. He argued on appeal that the trial judge had given too much weight to the wife's post-separation contributions and not enough to his own financial injections.
Outcome: The appeal on contributions failed. The trial judge had correctly found that the wife's contributions did not stop at separation but continued in circumstances made harder by it, and that the husband reached his position partly because of the years the wife had covered at home. The appeal succeeded only on a separate point about the formula used to express the final division.
Does a long separation change how contributions are assessed?
A short break of a few months and a separation lasting a decade raise the same question, because the court still has to weigh everything both people did across the entire period. Time apart changes what the contributions look like, not whether they count.
Marsh & Marsh [2014] FamCAFC 24 is the extreme version of this problem. Murphy J explained why the date of separation is not the dividing line that matters:
"But, importantly, it is not the fact of separation or when contributions are made that is the delineator. It remains crucial to analyse and weigh the nature, form and characteristics of all contributions across the whole of the period under consideration."
Ainslie-Wallace J made the same point from the other direction. Treating the growth in the pool after separation as the husband's contribution alone ignores the wife's ongoing contribution to his income, and it also tries to tie contributions to a particular class or list of assets, which is not permitted.
The parties lived together about 21 years and separated in 2000. They had three children, born in 1983, 1986 and 1990, who were about 17, 14 and 10 at separation. The wife had not been in paid employment since 1983, when she was 26. By the time the case was heard she was living on a Newstart allowance.
The husband kept working for the same employer after separation and the pool grew substantially. He put his post-separation contribution to the pool at around $1,285,000, and he had paid roughly $2.6 million for the benefit of the wife and children across the ten years since they split. On that basis the Federal Magistrate assessed post-separation contributions at 70 per cent to the husband and gave the wife 40 per cent of the property and 30 per cent of the superannuation.
Outcome: Appeal allowed. The Full Court held that this treatment gave no sufficient weight to 21 years of the wife's contributions, to the effect those years had on the husband's property and earning capacity, or to the fact that her contributions continued through the ten years after separation.
Do de facto contributions carry the same weight as a married spouse's?
A de facto partner's contributions carry identical weight to a married spouse's, and a judge who discounts them because you were not married is wrong in law. This was the central error in Whiton & Dagne, and the Full Court dealt with it in blunt terms.
The trial judge had reasoned that if the couple had been married for those eighteen years, the wife's submissions on contributions would have carried far greater weight. He said a marriage needs government authority to begin and a court decree to end, while a de facto relationship simply ceases to exist when the mutual commitment to a shared life goes away, and that on many occasions during the eighteen years that commitment did just disappear.
The Full Court's answer left no room:
"We are unaware of any authority to support the notion of the trial judge that if the wife's contributions had been made in a marriage they would somehow carry more weight in the assessment of contributions."
The reason sits in the legislation. Section 90SM of the Family Law Act 1975 governs property settlement for de facto couples and section 79 does the same job for married couples. The Full Court held that for all relevant purposes the two provisions are identical, so the settled case law on section 79, including High Court authority, applies to section 90SM in the same way.
That has a useful practical consequence. Every decision about how homemaking and parenting are valued in a marriage is directly available to a de facto partner, which is why the cases in this article are a mix of both.
The couple had four children, one of whom had significant disabilities including autism, ADHD, intellectual impairment and anxiety, and there was family violence in the relationship. The youngest child still lived with the wife, needing a level of care that merged with ordinary parenting, while the wife also carried about 75 per cent of the work of maintaining the family home.
The husband did not take part in the proceedings in the Federal Circuit Court, and the wife asked for 80 per cent of the pool. The primary judge instead assessed contributions at 60 per cent to the wife and 40 per cent to the husband, arrived at an overall 70 to 30 split, and ordered the wife to pay the husband a cash sum.
Outcome: Appeal upheld. The primary judge had not taken the wife's non-financial contributions into account properly. On a re-exercise of the discretion, Murphy J let the wife keep the former family home and her superannuation, the husband kept his own superannuation, and the wife paid him nothing. That works out to roughly 78 per cent to the wife and 22 per cent to the husband.
Who gets credit for a windfall gain in a de facto property settlement?
The timing question comes up constantly in on-off relationships. If a property was bought during one of the periods apart, and then shot up in value during another, the person holding the title will usually argue the whole gain is theirs. The courts see it differently: a jump in value that nobody caused belongs to the relationship, not to whoever is on the title.
Whiton & Dagne shows how that argument fails. The husband bought the Suburb C property in 2003 for $258,000, putting in $160,000 from the sale of an earlier property he had owned before the relationship and borrowing the rest. In January 2014 the State Government resumed the land and paid him $2,336,288, leaving net proceeds of $2,126,666.90 after loans. The whole pool at trial was worth $2,121,235, so this one gain was effectively the entire pool.
The trial judge described that pool as the product of what he had called a canny investment decision during the trial, though he allowed that a bit of luck played into it. The Full Court disagreed:
"It is well settled by authority, that a sharp rise in property value brought about by a rezoning or resumption is properly treated as a windfall gain for which neither party can take sole credit."
It is not hard to see why. The husband said he had bought the land for its development potential, but the gain had nothing to do with development. It came from a compulsory government resumption more than a decade later, and there was no evidence he had foreseen that when he bought. Calling it a canny investment credited him with something nobody could have predicted.
The Full Court also rejected the finding that the wife had not contributed at all to that property. In the five years between the start of cohabitation in 1998 and the 2003 purchase, both children were born, the wife took on the primary homemaking and parenting role, and she earned income as well, while the husband paid down the mortgage on the earlier property with money that would otherwise have been available to the family. Her wage earning, homemaking and parenting were contributions to both properties.
When has a de facto relationship genuinely ended for property settlement?
The line is real, but it is drawn where the shared assumptions stop rather than by who slept where. Once two people have genuinely stopped pooling their lives and finances, contributions cannot be read back into assets one of them acquired on their own terms.
Zaruba & Zaruba [2017] FamCAFC 91 shows what that looks like in practice, and it also shows that living in the same house does not settle the question either way. The couple divorced in 1996 but kept sharing a residence until 2005.
The Full Court's point was procedural but it matters enormously. Under section 79(2), and following the High Court's decision in Stanford v Stanford, a court has to ask first whether it is just and equitable to alter the existing interests in a particular piece of property. It cannot jump straight to working out percentages.
The Full Court also explained what actually marks the end of a relationship for this purpose:
"Importantly, it is not the event of separation marking the end of the martial relationship that is important; rather it is the end of any existing 'express and implicit assumptions that underpinned the existing property arrangement' which is important. Of course, that will very frequently occur upon the physical separation of the parties to the marriage, but not necessarily, as this case illustrates."
That is the test worth remembering. Moving out is usually when the shared assumptions end, but not always, and the reverse is also true. Two people can keep sharing a house long after those assumptions have gone.
Keep one thing separate, though. Everything in this section is about assessing contributions and deciding whether it is just and equitable to alter the interests in a particular asset. The date a de facto relationship ended also does a different job: under section 44(5) of the Family Law Act 1975 you have two years from the end of the relationship to apply for a property settlement, and after that you need the court's permission to start. Do not assume a date argued for one purpose settles the other. If your relationship ran hot and cold, get advice on the time limit early, because the argument that the relationship continued through the break-ups can also be the argument that keeps your application in time.
Two properties were in issue. The former family home at Hilton was owned jointly and agreed to be worth $450,000 at trial. The second, at Mindarie, was in the wife's name alone. She had bought the vacant land in 1993 for $74,000, about five years after the parties started living together, using money provided almost entirely by a friend, and the land could not have been bought without those funds. The block stayed vacant for about eleven years until a house was built on it between February 2004 and October 2005, funded by $125,500 from the wife's mother and about $146,000 from the same friend. By trial the property was agreed to be worth $1,000,000. The parties separated their finances close to 30 years before the appeal, divorced in 1996, and stopped sharing a home in 2005. The wife gave birth to twins in 1996 who were known not to be the husband's biological children.
The trial judge gave the husband a 10 per cent interest in Mindarie, worth $100,000, on the basis that he had performed some parental responsibilities for the twins. The wife, who represented herself, argued that Mindarie was not part of the marital property at all. Both parties gave markedly conflicting accounts of when they separated, and the trial judge described himself as struggling to find reliable factual material to work with.
Outcome: The Full Court held the trial judge erred in law by failing to ask, as section 79(2) requires, whether it was just and equitable to alter the wife's interest in Mindarie at all. There was no evidence supporting the $100,000 figure, and the husband had made no financial contribution to acquiring, maintaining or preserving the property. The court declared that the wife held the legal and equitable interest in Mindarie.
| Comparison | Whiton & Dagne [2019] | Zaruba & Zaruba [2017] |
|---|---|---|
| What happened during the separations | About 20 short separations caused by the husband's violence, followed each time by reconciliation | Finances separated roughly 30 years before the appeal, divorce in 1996, shared residence until 2005 |
| Who cared for the children | The wife, throughout, including every period apart | Twins born in 1996 who were not the husband's children |
| Financial lives | Still intertwined, with the wife working and supporting the children | Genuinely separate, with Mindarie bought and held by the wife alone |
| How contributions were treated | Counting them only for periods of cohabitation was an error of law | No contribution to Mindarie, so no order altering the wife's interest in it |
The decisive factor is not the number of separations or whether the parties shared an address. It is whether the shared financial and domestic life was still running.
Two more cases fill in the picture. In Crawford & Crawford [2012] FMCAfam 1315, the court dealt with a police hurt on duty pension by splitting the assets into three separate pools and assessing contributions to each one differently, putting the husband's contribution to the wife's pension at 18 per cent. In Causey & Causey [2018] FamCAFC 81, the court had to weigh years of caring for a child with significant disabilities against the other party's financial position. Both show the same approach: the court looks at what each period of the relationship actually involved rather than applying a single date as a cut-off.
For a closer look at how contributions are weighed once a relationship has ended for good, see Property Settlement: Do Post-Separation Contributions Count?. If your dispute is about when the separation actually happened, Separation Standards in Australia: The Legal Truth About Living Under One Roof, Sexual Relations, and Divorce covers the evidence courts look for. On what happens to money and property handed over during a de facto relationship, see De Facto Gifts: When Australian Courts Refuse Clawback. And for the percentages courts actually order, see 70/30 Divorce Settlement Australia: What Courts Order (2026).
What should I do if my de facto relationship had repeated separations?
Write down the timeline before you do anything else. Dates of every separation and reconciliation, who lived where, who had the children, and who paid for what. In Whiton & Dagne the whole case turned on how the periods apart were characterised, and the couple gave very different accounts of them.
Keep the records that show what you did while you were apart. Payslips, bank statements, school and childcare records, rent receipts, and anything showing you covered household costs. The wife in Whiton & Dagne relied on subpoenaed child support payment records to show what the husband had and had not paid during the separations.
Do not accept that being unmarried puts you in a weaker position. Section 90SM and section 79 work the same way, and the case law developed for marriages applies to you.
Raise family violence if it is part of the story. In Whiton & Dagne the separations happened because of the husband's violence, and the Full Court found it remarkable that the trial judge had credited the husband with generosity for later helping with debts the wife incurred while she was away from him.
Do not assume a big capital gain belongs to whoever holds the title. Check what actually caused the rise. If it came from rezoning, a resumption, or the market rather than someone's effort, neither of you can take sole credit for it, no matter whose name is on the certificate.
Get advice on your specific timeline. Whether a period apart ended the relationship, or was an interruption in a continuing one, is a question of fact that changes the outcome substantially.
