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:
A property settlement can cover all types of debts, including:
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:
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:
You can negotiate a property settlement with your ex-partner partner where:
You must also have a geographical link to the Courts jurisdiction. This means you and your ex-partner:
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:
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:
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:
To find out what you might be entitled to in a property settlement without involved your ex-partner, you should:
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:
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:
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.
These steps are known are pre-action procedures.
In limited circumstances, you may be exempt from following the pre-action procedures where:
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:
The Court can make a wide range of orders, including orders:
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:
For more information, see Safety at court on the Federal Circuit and Family Court of Australia website.
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:
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 Court can order that maintenance be paid for a specific period of time or on an indefinite basis.
A maintenance order will automatically end:
Your ex-partner may apply to end the payments if:
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:
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:
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.
There are time limits for applying for property or maintenance orders:
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.