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Your safety is important
If you feel unsafe or are experiencing any violence, call the police, a domestic violence counsellor or get legal advice.
A property settlement can deal with all types of property, debts, and certain financial resources.
If you have separated from your partner, you may need to negotiate a property settlement and maintenance. You can do this at the same time.
If it is safe, you and your ex-partner should try to reach an agreement about how to divide your property.
If you can’t reach an agreement, you may be able to apply for court orders.
Divorce is an entirely separate process from property and maintenance. For more information about getting a divorce, see Divorce.
A property settlement can cover all types of property, including:
- real property, such as houses and land
- businesses, companies or trustsvehicles, such as cars, motorbikes, caravans and boats
- superannuation, shares and other financial products
- pets
- furniture and household items
- jewellery and other personal belongings
- cash.
A property settlement can cover all types of debts, including:
- mortgages
- personal loans
- buy now pay later debts
- car loans and leases
- credit card debt
- unpaid taxes
- household bills.
For more information about how to deal with your debts, see Separating with debt: a guide to your legal options on the Attorney-General’s Department website.
A financial resource is a source of financial support that is reasonably available to a person, such as:
- an anticipated inheritance
- an interest in a discretionary trust
- long service leave
- carried forward tax losses
- a future pension entitlement.
Financial resources are not property and can’t be divided during a property settlement. However, they can be taken into account in property settlements and interim spousal maintenance cases.
Both married and de facto couples can negotiate a property settlement. The process is the same regardless of what type of relationship you were in.
Married couples can negotiate a property settlement, even if they haven’t applied for a divorce yet.
A de facto relationship is a domestic relationship between two adults who live together as a couple and are not married or related to each other.
There are a number of different factors you can look at to determine whether you were in a de facto relationship, including:
- the length of your relationship
- whether you and your ex-partner lived together, and if so, for how long
- the financial arrangements between you and your ex-partner
- whether you and your ex-partner own property together
- how you cared for your children
- how other people saw your relationship.
You can negotiate a property settlement with your ex-partner partner where:
- you were in a relationship for least 2 years
- you have a child together
- your relationship is or was registered under a prescribed law of a State or Territory, or
- one or both parties have made substantial contributions which would lead to serious injustice if any order was not made.
You must also have a geographical link to the Courts jurisdiction. This means you and your ex-partner:
- currently live in Australia, or
- were living in Australia when your relationship broke down.
The first step in negotiating a property settlement is to identify the property to be divided. This is done through the process of financial disclosure.
In this process, you and your ex-partner have a duty to provide to each other with all the documents and information about your income, assets, debts, and other financial resources. You must disclose your total direct and indirection financial circumstances.
The duty covers all assets and debts that are in your name, or that are held by a corporation, trust, company, or other structure.
It also covers any assets that have been disposed of in the year immediately before separation and since separation, that may affect, defeat, or deplete a claim.
If you don’t comply with your duty, a court can:
- set aside your consent orders
- refuse to allow you to use information or documents you didn’t disclose as evidence to support your case
- adjust the property settlement in favour of your ex-partner, if they have provided full disclosure
- stay or dismiss all or part of your case
- make a costs order against you
- fine you
- send you to gaol.
To ensure you reach a fair settlement, it is important that you and your ex-partner provide full and frank financial disclosure.
For more information, see Duty of disclosure on the Federal Circuit and Family Court of Australia website.
The law doesn’t tell you what assets or what percentage of your assets you should receive in a property settlement. Instead, it provides a process for determining what percentage of the net value of your assets you are entitled to.
The first step in the process is identifying and valuing the assets of the relationship.
The second step involves assessing the contributions you and your ex-partner made toward the assets. There are three types of contributions:
- direct and indirect financial contributions, for example, contributing your wage or salary, or inheritances towards the assets
- direct and indirect non-financial contributions, for example, doing unpaid work in the family business
- homemaker and caregiver contributions.
The final step in the process involves adjusting for the future needs of you and your ex-partner. There are a range of factors that can be taken into account when considering you and your ex-partners futures needs, including:
- your age and health
- income, property, and financial resources
- you and your ex-partners earning capacity
- who will care for your children
- child support.
To find out what you might be entitled to in a property settlement without involved your ex-partner, you should:
- speak to a lawyer, or
- see the amicaone website.
If you and your ex-partner can agree on how to divide your property, you don’t have to go to mediation or court. You can:
- keep your agreement informal, or
- make a binding financial agreement.
If you want your agreement to be made into court orders, you can apply for consent orders.
An informal agreement can include a verbal or written agreement.
There are no rules for making an informal agreement. It can be as detailed or as simple as you like.
If you make an informal agreement, you should put it in writing. This will help avoid misunderstandings and disputes about the terms of your agreement.
You don’t go to court for an informal agreement. For this reason, your agreement won’t be legally enforceable.
A binding financial agreement (BFA) is an agreement that sets out how you and your ex-partner will divide your property after separation. It is also known as a pre-nuptial agreement or cohabitation agreement.
You can make a BFA before, during or after your relationship.
Before you can make a BFA, you must get independent legal advice about the nature and consequences of the proposed agreement.
For a BFA to be legally valid it must:
- be in writing
- be signed by both parties after they have both received independent legal advice, and
- include a certificate from each party’s lawyer that states that legal advice was given about the agreement.
You don’t go to court for a BFA. However, a BFA is legally enforceable.
Consent orders are court orders that reflect the agreement between you and your ex-partner about property and maintenance. They are legally binding just like orders made by a Judge after a contested hearing.
You can apply to the Federal Circuit and Family Court of Australia or Local Court of NSW for consent orders.
Before you apply for consent orders, you should get legal advice. Consent orders are meant to finalise your property and maintenance matter so that you don’t come back to court. There are only limited circumstances where you can apply to the Court to change the orders.
For more information, see Property and Financial Agreements and Consent Orders – What You Need To Know on the Attorney-General’s Department website.
If you and your ex-partner can’t agree on how to divide your assets, you must make a genuine effort to resolve your dispute before you can apply for property orders.
You must:
- provide full and frank financial disclosure
- attempt some form of mediation or dispute resolution
- write to your ex-partner setting out your position and exploring options to resolve your dispute.
These steps are known are pre-action procedures.
In limited circumstances, you may be exempt from following the pre-action procedures where:
- your case is urgent, for example where your ex-partner is about to sell or dispose of an asset
- there are family violence allegations, or a risk of family violence
- you would be unduly prejudiced (or unfairly affected) if you are required to comply with the pre-action procedures
- you and your ex-partner have been involved in property proceedings in the same 12 months immediately prior to the commencement of proceedings
- your case involves a child support application or appeal, or bankruptcy.
If you think you are exempt from the pre-action procedures, you should get legal advice.
For more information, see Mediation.
If you and your ex-partner can’t decide how to divide your property, and you have followed the pre-action procedures, you can apply to the Federal Circuit and Family Court of Australia or Local Court of NSW for property orders.
This is an option of ‘last resort’ as it is the most expensive, and time consuming way to sort out property and maintenance.
When hearing an application for property orders, the Court must first decide whether it is just and equitable to make orders. The Court can't make orders unless it is satisfied, in all the circumstances, that it is just and equitable to make orders. It doesn't have to make orders just because a person has applied for them. What is just and equitable will depend on the circumstances of each case.
If the Court decides it is just and equitable to make orders, it has the discretion to make such orders as it considers appropriate in the circumstances. When deciding what orders are appropriate in the circumstances, the Court must consider the contributions and the future requirements of you and your ex-partner, including:
- your age and health
- your current income and earning capacity
- the effect of an order on the earning capacity of you and your ex-partner
- the payment of child support.
The Court can make a wide range of orders, including orders:
- to transfer ownership of property to another person
- to sell the family home
- dividing personal property
- splitting superannuation
- for one person to pay the other person a sum of money.
For more information, see Finances and property: We cannot agree on the Federal Circuit and Family Court of Australia website.
If you are concerned about your safety while attending court, you should speak to the Court registry at least five working days before the hearing.
The Court can take steps to ensure your safety, including:
- using the safe room
- entering and leaving the courthouse from a different exit
- attending by telephone or video
- having a support person at court
- closing the Court to the public
- excluding certain people from being in the courtroom.
For more information, see Safety at court on the Federal Circuit and Family Court of Australia website.
If you need an interpreter, you should arrange one before the hearing.
If you can’t afford an interpreter, the Court may arrange one for you. You should contact the Court at least two weeks before the hearing to arrange an interpreter.
For more information, see Interpreter policy and guidelines on the Federal Circuit and Family Court of Australia website.
If you have a disability, medical condition or other special needs that means you require support from the court, you should contact the Court at least one week before the hearing.
For more information, see Court support on the Federal Circuit and Family Court of Australia website.
You can bring a support person with you to court. This may be a friend or relative. Your support person will not be allowed to speak for you or sit at the bar table with you.
Spousal maintenance is financial support paid by one party to another party who cannot adequately support themselves. This is different to child support, which is money paid by one parent to the other to financially support their child.
You may be able to receive maintenance if you can’t meet your own reasonable expenses from your personal income or assets. The amount of maintenance you receive will depend on what your ex-partner can afford to pay.
If you and your ex-partner can’t agree about maintenance, you may be able to apply for court orders.
You will need to show the Court that you need support because you:
- are caring for a child of the relationship
- can’t work due to their health, disability or age
- no longer have the necessary skills to gain employment
- are unable to support yourself due to other good reasons.
You will also have to show that your ex-partner can pay maintenance.
When deciding whether to make an order for maintenance, the Court will consider:
- the age and health of both you and your ex-partner
- the income, property and financial resources of both you and your ex-partner
- you and your ex-partner’s ability to work
- what is a suitable standard of living for both you and your ex-partner
- whether the marriage has affected you and your ex-partner’s ability to earn an income
- who your children live with.
The Court can order that maintenance be paid for a specific period of time or on an indefinite basis.
A maintenance order will automatically end:
- at the time specified in the court orders
- when you re-marry, or
- when either party dies.
Your ex-partner may apply to end the payments if:
- your financial situation improves, for example by entering into a de facto relationship
- you start earning more income
- you reduce the amount of care you provide to your children.
For more information, see Finances and property: Spousal maintenance on the Federal Circuit and Family Court of Australia website.
If you have recently separated from the other parent, you may need to sort out your finances.
Depending on your parenting arrangements and financial circumstances, you may be eligible for:
- Centrelink payments, including pensions and allowances
- Family Tax Benefit
- childcare fee assistance.
You may also be eligible for child support.
For more information about Centrelink payments, see Centrelink.
For more information about child support, see Child support.
For information and tools to help you manage your finances, see:
- Managing your money on the Services Australia website, and
- the moneysmart website.
If you are experiencing financial stress, you should speak with a financial counsellor.
If you have, or are experiencing domestic violence, there are specialist financial counsellors that can help you deal with debt, financial hardship, Centrelink and managing your money.
For more information, see Find a Financial Counsellor on the National Debt Helpline website.
If you are Aboriginal or Torres Strait Islander, you can call the Mob Strong Debt Help to speak to a First Nations financial counsellor. For more information, see Mob Strong Debt Help on the Financial Rights Legal Centre website.
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Time limit
There are time limits for applying for property or maintenance orders:
- married couples have 1 year from the date their divorce order comes into effect
- de facto couples have 2 years from the date of separation.
If your marriage was declared void, you have 12 months from the date of the decree of nullity to apply for property or maintenance orders.
- married couples have 1 year from the date their divorce order comes into effect
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