Property

What​​ rights​​​ do​​​​ ​​​​​I have​​ t​​o ​​stay or leave our home?​​​

The rights you and your ex-partner have, to stay or leave the home depend on whether:

• you and/or your ex-partner rent the property and whose name is on the lease
  
• you and/or your ex-partner ow​n the property and whose name is on the certificate of title
  
• there is/has been domestic violence in the relationship
  
• a court order has been made that excludes you or your ex-partner from the home
• you and your ex-partner were/are married. 

If you are unsure about your rights, you should get legal advice.​

What righ​ts do I have to stay or leave a rental property?

If you and your ex-partner live in a rental property your rights to stay or leave the property depend on who signed the residential tenancy agreement (the lease).

If the lease is in both names, you each have equal rights to stay in the property. If your name is not on the lease you may still have rights and obligations, and you should get advice from a tenancy advice service.

If you or your ex-partner want to leave, your rights and obligations will depend on whether you are in a fixed or continuing lease, or whether there is domestic violence. 

If you have been the victim of domestic violence, you may be able to stay at the rented premises and have the perpetrator leave, or you may be able to leave and end your legal liability for the tenancy. 

For more information, see the factsheet Domestic violence and tenancy on the Tenants' Union of New South Wales website.

​What righ​​ts do I hav​​e to stay or​ move o​​ut of the home we own?

If you were married or in a de facto relationship and have separated from your ex-partner you can:

• stay in your home whether or not the home is in your name, both of your names, or your ex-partner's name
• ask your ex-partner to leave the home, or
• leave your home.

After separation and before a property settlement being finalised, who remains in the home is a matter to be discussed and negotiated between you and your ex-partner, through mediation, or decided by the Court.

If you leave your home, you will still be legally responsible for any of the debts in your name (or in both names), such as council rates, the mortgage etc. If your ex-partner stays in the home and does not pay these debts you will have to pay them, or the bank may take legal action you and your ex-partner to recover the arrears and full amount owing.

If you are unsure about your rights in relation to living arrangements, you should get legal advice. 

What rights do I have to stay or leave our home if there is domestic​ violence in the relationship?

If there is domestic violence in the relationship and you rent your home with your ex-partner, you may have rights to leave your home (and end the tenancy), or stay in your home (and exclude your ex-partner). Your rights depend on:

• whether you are a co-tenant, head-tenant, sub-tenant or boarder or lodger
• whether you can get a final Apprehended Domestic Violence Order (ADVO) against your ex-partner, with an order that prevents them from accessing the home
• any other rights you have to take action in the NSW Civil and Administrative Tribunal (NCAT) under tenancy laws.

For more information, see the factsheet Domestic violence and tenancy on the Tenants' Union of New South Wales website.

If you and/or your ex-partner own a property and you are experiencing domestic violence, you may be able to apply for:

• an ADVO that includes additional orders preventing your ex-partner from accessing the property
  
• an exclusive occupancy order.
  

You should get legal advice about your situation, and/or speak to your local Tenants Advice and Advocacy Service.

Can I get an order that exc​​ludes my ex-partner from the home?

The Federal Circuit and Family Court of Australia can make an order that prevents a person from entering or living in a property. If you apply for this type of order, the Court will consider the needs of you, your ex-partner and your children.

The Local Court of NSW can also make an order that excludes a person from accessing a property when it makes an Apprehended Domestic Violence Order (ADVO).

Before you apply to the Local Court or Federal Circuit and Family Court of Australia, you should get legal advice.

Can I change the locks​​ to stop my ex-partner from accessing the home?

If you rent the property you can change the locks if you:

•  have a final Apprehended Domestic Violence Order against your ex-partner with a condition that excludes them from accessing the property. You do not need your landlord's permission to do this, but you should tell your landlord and provide them with a copy of any new keys.
• have a court order, which gives you permission to do this.

Your rights in other situations vary, for example if you rent, your rights to change the locks will depend on whether you are on the lease and whether you get permission from the landlord

If you or your partner own the home and you want to change the locks to stop your ex-partner from accessing the home, you should get legal advice.

What if I am locked out of my h​ome?

If you have been locked out of your home, you should get urgent legal advice.

Am I allowed to go back to the family home to get my personal belongings after I have moved out?

If you left some of your personal belongings at your former family home when you moved out, you have a legal interest in those things, and you are entitled to get them back.

How you can get your personal belongings back depends on whether:

• you are on the title or lease for the property
• you and your ex-partner have an agreement for you collecting your belongings
• there are any orders in place that stop you from going to the property.

You should make arrangements with your ex-partner for a time to go back to the home to collect your personal belongings as long as there is not a Court Order preventing you from doing so. If it is not safe for you to go to the home by yourself, you should contact the police. They may be able to accompany you to the home for a short period of time while you collect the things you need urgently, for example your wallet, laptop, or clothes. They will not help you remove all of your personal belongings.

If there is an Apprehended Violence Order (AVO) in place that stops you from going near or entering the property, and the AVO proceedings are ongoing, you can apply for a Property Recovery Order.

If your partner refuses to allow you to enter the home to retrieve your personal belongings or if there is a dispute around what belongings you are able to take, you should get legal advice.

For more information, see Property Recovery Orders in the Apprehended Violence Orders topic on the My problem is about section of our website.

If the AVO proceedings are finished, you should get legal advice.

Can I keep the engagement ring if my partner and I break up?

The engagement ring will be a part of the “asset pool” to be divided between you and your ex-partner. This should be negotiated between you at the time when you negotiate the division of your other assets and debts.

This can be complex. If you are unsure what you should do, you should get legal advice.

What if we have debt​s?

You are legally responsible to pay any debts in your name, or both names, regardless of who is living in the home. For example, your mortgage, or an electricity bill in both your name and your ex-partner's name.

If you have debts in both names, and your ex-partner does not pay, the creditor (the person owed the money) can usually recover the whole amount from one or both of you.

If you are having difficulty paying your debts, you should speak to a financial counsellor. You also have certain rights under the national credit laws for consumer credit debts, for example home loans, personal loans, credit cards. 

For more information, see the Consumer credit debt topic.

If you have received bills that are not in your name, you should give the bill to your ex-partner unless a court order, like an Apprehended Domestic Violence Order (ADVO), stops you from having contact with them.

Debts are included in a property settlement. In some circumstances, the Court can make orders about who pays certain debts.

If you are concerned about debts after you have separated, you should get legal advice about your situation. 

What can we do about th​e mortgage?

If you and/or your ex-partner have a mortgage on a property, the person whose name is on the mortgage contract is legally responsible to make the repayments.

This means that if the mortgage was taken out by both of you, and your ex-partner stops paying it, the lender can recover the arrears and full amount owing from one or both of you. In this situation, each of you is jointly and individually responsible for the debt.

Sometimes you and/or your ex-partner may have difficulty making repayments because of the separation. You can speak to your lender about your situation and/or get financial counselling and legal advice. You have certain rights under the national credit laws, such as the right to seek a hardship variation from your lender in this type of situation.

It is important to act quickly to protect your credit rating, avoid extra fees and charges and court proceedings.

If you are concerned about debts after you have separated, you should get legal advice about your situation.

For more information, see the Consumer credit debt topic.

What if my ex-partner​ stops paying the mortgage?

If your ex-partner's name is the only name on the mortgage contract, they are legally responsible for the repayments. If repayments are missed, the lender may only take legal action against your ex-partner to recover the debt.

If your name is also on the mortgage, you are also responsible for making the repayments. If your ex-partner does not pay the mortgage, you will have to pay it or the bank may take legal action you and your ex-partner to recover the arrears and full amount owing.

If you or your ex-partner can't afford to make the repayments, you may be able to seek a hardship variation of your loan with your lender. 

You should get legal advice about your options and/or speak to a Financial Counsellor as soon as possible.

For more information, see the Consumer credit debt topic.

What if my ex-partner redraws on the mortgage?

If you and your ex-partner have a mortgage together with a redraw facility, you may want to speak to your lender about:

• stopping all redraws, or
  
• co-signing to redraw money. 
  

If your ex-partner redraws on the mortgage, this will increase the amount of debt that both you and your ex-partner owe. If you default on your mortgage repayments, you will be liable to pay the full amount, including the amount redrawn by your ex-partner.      

If the mortgage is in your ex-partner’s name only, you may need to get an undertaking from your ex-partner or an injunction preventing them from redrawing on the mortgage. 

If you are not sure what to do, you should get legal advice as soon as possible. 

Can one person d​ecide to se​​ll the home?

If the home is in both your name and your ex-partner's name, it can't be sold unless:

• both of you agree, or
• a court makes an order for the house be sold.

You should get legal advice if you want to sell the home and your ex-partner won't agree, or if your ex-partner is threatening to sell the home.

If the home is only in your ex-partner's name, you should get urgent legal advice about your options to protect the home from being sold.

What can we do if we hav​​e joint bank accounts?

If you and your ex-partner have a joint bank account, the money in the account belongs to both of you. You can speak to your ex-partner about:

• how you divide the money in the account
• whether you want to close or vary the account details (you will also need to speak to the bank/financial institution about their requirements).

You may want to open an account in your own name and transfer your wages and direct debits to this account. This will stop your ex-partner from taking your wages and leaving you with no money to pay your bills. 

If your ex-partner has threatened to take money from the joint bank account, you may be able to take action to prevent this from happening and should get legal advice.

If you want to withdraw money from a joint bank account, you should get legal advice.

If you have a joint credit card (or store card), you should contact the financial institution to discuss the account.

What do I do if my partner has access to my bank accounts and credit cards?

If your ex-partner has access to your bank accounts and/or credit cards, you may want to speak to your lender to:

• change your login details
  
• change your PIN(s)
  
• update your contact details
  
• remove your ex-partner as an authorised signatory 
  
• cancel any cards that your ex-partner has. 
  

If your ex-partner takes money from your account, you may not be able to get it back. You will still have to pay your bills, even if your ex-partner takes your money. 

If your ex-partner spends money on your credit card, you will be legally responsible for repaying the amount they have spent.  

What can I do if I am concerned​ about my ex-partner disposing of our assets?

If you have concerns about your ex-partner disposing of assets, such as selling the home or withdrawing money from accounts, you should get legal advice.

A lawyer can advise you about steps you can take to protect your property, which can include getting a court order that stops your ex-partner from disposing of assets.

What can I do if I am experiencing domestic violence?

If there is domestic violence in the relationship and you are concerned about joint bank accounts or debts, whether in your name or in both names, you may have options to manage your finances and protect yourself.

The Australian Bankers' Association has released a new industry guideline for dealing with financial abuse and domestic violence. The guideline provides clearer processes for banks so they can better support customers who may be experiencing financial abuse and domestic violence. 

In addition to current financial hardship arrangements available under the national credit laws, the new industry guideline allows banks to offer more flexible arrangements to customers experiencing domestic violence.

If you are concerned about debt or joint bank accounts, you should get legal advice. 

For more information on domestic violence, see the Apprehended Violence Orders topic.

​​Will I be affected if my ex-​partner applies for bankruptcy?

Bankruptcy will affect all property owned by your ex-partner and will include any property you own jointly with them. It is important that you get legal advice if you have property in joint names and your ex-partner is applying for bankruptcy.

For more information, see the Bankruptcy topic.

What i​f we have a dispute about who keeps the pet?

There are no specific rules that deal with disputes over animals when a relationship bre​aks down. Animals are considered property of the relationship and will be considered along with all of the other property in your case.

If you are concerned about your pet and cannot reach an agreement with your ex-partner, you should get legal advice about your options.

Should I change my will if I have se​​parated from my partner?

It is a good idea to change your will if you have separated from your partner and they were included in your will.

If you were married, getting a divorce will revoke (cancel) provisions of an existing will that makes a gift to your former spouse or appoints your former spouse as an executor, trustee or guardian.

If you were in a de facto relationship, separating from your partner will not invalidate your will. Any gifts in your will to your partner may still be valid, even if you have separated and divided your assets.

 If you are separated or divorced, you should get legal advice about making a new will.

Should I change my superannuation beneficiaries if I have separated from my partner?

If you nominated your ex-partner to be a beneficiary of your superannuation, you may want to remove them.

If you don’t and you pass away, your superannuation fund may pay your benefit to your ex-partner. 

If you need advice about superannuation, you should speak to a Financial Counsellor. To find a Financial Counsellor, see Financial counselling on the moneysmart website.

What rights do I have if​​ I separated from my de facto partner before 1 March 2009?

If you separated from your de facto partner before 1 March 2009, you will need to get legal advice.

The law that applied up until that date is different to the laws that apply now.

What do I do if our assets/property is considered proceeds of crime?

You must tell the Family Court as soon as possible if you become aware that a proceeds of crime order or forfeiture application covers property of either you or your ex-partner. It is an offence if you don’t tell the court. 

If your property settlement involves proceeds of crime, the court may issue a stay (pause) on proceedings. The relevant federal, state or territory proceeds of crime agency may be invited or required to attend to make submissions before staying the proceedings.

There are three main options for a former spouse or partner who is seeking to retain property of the relationship:

• proceedings under the Family Law Act
• an application under the Criminal Assets Recovery Act
• application to assert an equitable interest in forfeited property.
  

If you think your property may be proceeds of crime, you should get legal advice about your situation.

What a​re p​​re-​​action​​​​​​​ procedures?

The law states that everyone must make a genuine effort to reach an agreement about their property settlement matter before applying to a court for property orders. 

In order to do this, there are certain steps you must take unless you meet one of the exceptions. These are called pre-action procedures.

This means:

• providing full financial disclosure of all your assets and debts
  
• attending dispute resolution, including mediation, family counselling, conciliation, or arbitration
• agreeing on a dispute resolution provider and make a genuine attempt to resolve the dispute by participating in dispute resolution
• if dispute resolution is unsuccessful or one person did not attend, the person intending on making a Court application must write to the other person notifying them of their intention to commence Court proceedings.

When writing to your ex-partner you must:

• tell them what issues are in dispute
  
• make a genuine offer to settle the case
  
• inform them what orders you will seek if the matter goes to court 
  
• give them a reasonable time to respond to you, not less than 14 days.
  

If you don’t comply with pre-action procedures and you are not exempt, the Court may make a costs order against you.

For more information, see the brochure Before​ you file - pre-action procedures (prescribed brochure) on the Federal Circuit and Family Court of Australia website.

What is duty of disclosure?

At an early stage of attempting to resolve your property dispute, the people involved in the property dispute should exchange financial disclosure documents, so that each party is aware of the financial information relevant to the dispute.

The documents that each person should provide to the other include, but are not limited to:

• a schedule of assets, liabilities and superannuation
• your three most recent tax returns and notices of assessment
• a completed Superannuation Information Form, or latest superannuation statement
• market appraisals for any property that you have an interest
• any interest in a business, company, trust or partnership. 

Do I have to follow the pre-action​​​ procedures?

The pre-action procedures apply to:

• anyone considering starting a case
• anyone who is named as a respondent in a case
• their lawyers, if any.

You must use pre-action procedures to try and resolve your property settlement dispute unless an exemption applies.  Exemptions apply where there has been:

• domestic or family violence
• child abuse
• fraud
• where a time limit is close to expiring, or 
• where pre-action procedures may prejudice you or your ex-partner.

In these situations, you may be able to apply directly to the Court for property orders.

Before you apply for property orders, you should get legal advice.

For more information, see Before you file – pre-action procedure for financial cases on the Federal Circuit and Family Court of Australia website.

What if I don't follow the pre-act​ion procedures?

The Court will expect you and your ex-partner to make a genuine effort to resolve your dispute before going to court. If you fail to follow pre-action procedures, the Court may:

• adjourn your matter to give you time to do this
• take it into account when deciding your case
• make a costs order against you, which would mean you would have to pay your ex-partner's legal costs.

If you don't want to follow the pre-action procedures, you should get legal advice.

For more information, see Before you file – pre-action procedure for financial cases on the Federal Circuit and Family Court of Australia website.

What happens if my ex-partner d​oesn't follow the pre-action procedures?

The Court will expect you and your ex-partner to make a genuine effort to resolve the dispute before going to Court. If your ex-partner fails to follow pre-action procedures, the Court may:

• adjourn the matter to give you both time to try and resolve the dispute
• take it into account when deciding your case
• make a costs order against your ex-partner.

If you have a lawyer, you can also ask the Court to make a costs order against your ex-partner for failing to follow the pre-action procedures.

For more information, see Before you file – pre-action procedure for financial cases on the Federal Circuit and Family Court of Australia website.

How do I show the Court I have ​​followed the pre-action procedures?

When you file your application at the Court, one of the documents you must complete and file is a Genuine Steps Certificate. In this certificate you will need to explain whether you and your ex-partner have followed the pre-action procedures.

When you provide your evidence to the Court, you may want to include your attempts to follow pre-action procedures or explain why no attempts were made to resolve your matter before applying for property orders.

What is Family Dispute Resoluti​​on?

Family Dispute Resolution (FDR) is a type of mediation that helps parties you resolve disputes about property, children or other issues.

In FDR you and your ex-partner will be assisted by a mediator who is a trained impartial third party, to reach your own solution to the dispute, without any involvement from the Court.

Should I have a lawyer for Family Dispute Resolution?

It is a good idea to get legal advice before participating in Family Dispute Resolution. Although you do not need a lawyer present during the process, you should speak to a lawyer beforehand to ensure you know about your rights.  

How can I find a Family Dispute Resolutio​n service?

You can contact your local Family Relationship Centre to find out if they offer mediation in property settlement matters.  

You can find a list of Family Dispute Resolution Practitioners by searching the Family Dispute Resolution Register on the Family Relationships Online website.

You can apply for a Legal Aid grant for your matter, however Legal Aid will only provide assistance in property settlement to people who meet their eligibility criteria.

For more information, see A-Z guide to policies on the Legal Aid website.

​​What if we reach ​​​​an agreement on how property is divided?

If you can reach an agreement with your ex-partner about how property is to be divided, you can:

• make a financial agreement
  
• apply for consent orders.
  

You should get legal advice about the advantages and disadvantages of formalising an agreement in your circumstances.

For more information, see Finance and property on the My problem is about section of our website.

What is a financial a​​greement?

A financial agreement is an agreement that can be made before, during or after a relationship that sets out how property will be divided at the end of the relationship.

For a financial agreement to be valid it must:

• be in writing
• be signed by you and your ex-partner after you have both received independent legal advice
• include a certificate from each of your lawyers, which confirms you were given legal advice about the agreement.

You can enter into a financial agreement if you are or were married or in a de facto relationship, or if you were in more than one relationship at a time.

In some cases, you can apply to the Court to make your agreement into consent orders.

A financial agreement or consent orders will:

• ensure that the financial relationship between you and your ex-partner ends
• set out the terms of the agreement clearly to avoid any future disputes
• be enforceable, and
• help to avoid the risk of any future claims against you.

If you want to make a financial agreement, or you have made one that you want to change, you must get legal advice.​

For more information, see Finances and property: Financial agreements on the Federal Circuit and Family Court of Australia website.

How does a financial agreemen​​t affect a property settlement?

A financial agreement will state how property is divided and will be valid if it meets certain legal requirements. 

If you think the agreement is unfair or your circumstances have changed since you entered into the agreement, you will need to speak to a lawyer about re-negotiating a new agreement and/or your rights to apply to the Court for a property settlement.

Is a prenuptial agreement the same as a financial agreement?

In Australia, prenuptial agreements are called financial agreements.

A financial agreement can be made before, during or after your relationship.

Is a cohabitation agreement the same as a financial agreement?

In Australia, cohabitation agreements are called financial agreements.

A financial agreement can be made before, during or after your relationship.

What are consent ​orders?

Consent orders are court orders that confirm an agreement you have reached with your ex-partner. They can cover how you and your ex-partner are dividing property, as well as other things like spousal maintenance and superannuation.

Consent orders are enforceable. A party can be punished by the Court if they don’t follow the orders.

If you want to apply for consent orders you need to file an Application for Consent Orders and proposed consent orders.

For more information, see Finances and property: We have agreed on the Federal Circuit and Family Court of Australia website.

Before entering into any agreement or applying for consent orders, you should get legal advice. A lawyer will help you to understand the effect of your agreement.

Are consent orders ​final?

Consent orders are final and enforceable. In limited circumstances the Court can set them aside, such as where there is fraud or duress.

If you want to vary your consent orders or if you believe they should be set aside, you should get legal advice.

Can I have property orders set aside?

In limited circumstances the Court can set aside or overturn property orders. If you want your property orders set aside, you will need to show:

• the other party failed to disclose assets or debts 
• the other party committed fraud 
• the orders were made under duress, or

• circumstances have arisen since the orders were made that make it impracticable or impossible for a part or all of the order to be carried out.  
  

If you want to have your property orders set aside, you should get legal advice.   

What is the difference ​between a financial agreement and consent orders?

A financial agreement is a written agreement which deals with all or part of the assets after a breakdown of your marriage or de facto relationship. A financial agreement must comply with formal requirements for it to be legally binding.

A financial agreement is not filed in court unless you or your ex-partner make an application to the court to enforce or set aside the agreement.

Consent orders are court orders that are made after you have negotiated and reached an agreement with your ex-partner. The Court will make consent orders if it considers the agreement to be fair.

Financial agreements or consent orders are difficult to change once they have been made. Before entering into a financial agreement or signing any consent orders, you should get legal advice.

What if ​we​​ can'​t​ a​​gree on how property is divided?

If you and your ex-partner can't reach an agreement about how to divide your property, you can apply to the Court for property orders as long as you have made a reasonable attempt to comply with the pre-action procedu​res.

In some cases, the pre-action procedures will not apply, for example, where there is child abuse, fraud or family/domestic violence.

For more information, see:

• Finances and property: We cannot agree on the Federal Circuit and Family Court of Australia website
  
• How your Family Law case will be managed by the Court on the Federal Circuit and Family Court of Australia website.
  

What is a property settle​​ment?

A property settlement is where property (assets such as your home and money in the bank) and debts are divided after separation. A property settlement can be done by:

• reaching an informal agreement - where you and your ex-partner divide your property and debts without the need for a financial agreement or court order
• formalising an agreement, by entering into a financial agreement or applying for consent orders
• applying to the Court for property orders, where agreement can't be reached.

For more information, see Finance and property on the My problem is about section of our website.

Who can apply for pr​operty orders?

You can apply for property orders if you:

• are or were married
  
• are or were in a de facto relationship if:
  • your relationship was longer than two years
  • you and your ex-partner had children together
  • you made significant contributions to the property
  • your relationship was registered under a prescribed law of a State or Territory.

How do I apply for property orders?

To apply for property orders, you must file:

• an Initiating application
• a Financial statement
• a Superannuation information kit – if you are asking for a super split or flagging order
• a Financial questionnaire
• a Genuine steps certificate
• any family violence orders. 

If you are asking for interlocutory orders, you need to file:

• an Initiating application
• an Affidavit
• a Financial statement
• a Superannuation information kit – if you are asking for a super split or flagging order
• a Genuine steps certificate
• any family violence orders. 

For more information, see How do I apply for property and financial orders? on the Federal Circuit and Family Court of Australia website.

Can a third party​ apply to join property proceedings?

Other people that believe they have a financial interest in your property matter may apply for permission from the Court to be included as a party in your property settlement case. For example, a creditor who may be owed money from one or both of the parties, or a family member who may have lent money to one of the parties to purchase a home.

Which court do​ I apply to?

If you can't reach an agreement with your ex-partner and you want to apply for property orders, you can apply to:

• the Local Court of NSW (for property disputes less than $20,000, or if both parties agree), or
• the Federal Circuit and Family Court of Australia.

Before you apply for property orders, you should get legal advice.

For more information, see Finances and property: We cannot agree on the Federal Circuit and Family Court of Australia website.

What type of property ​can be divided?

The types of property that can be divided in a property settlement include assets like:

• real estate
• personal property
• assets and goodwill that you or your ex-partner have built up in a business
• cash
• shares
• investments
• gifts and inheritances
• lottery wins
• redundancy payouts
• compensation payments
• superannuation.
  

These assets can be yours, your ex-partners, or joint assets.

Some assets, or potential assets known as financial resources, generally, can't be dealt with by the Court, but the Court will take these assets into account when deciding how to divide the property and debts of parties. Financial resources may include:

• future expectations under a will or trust
• long service leave entitlements, or
• legal action underway for personal injury.

The Court will also consider the debts you and your ex-partner have, such as any mortgages, personal loans, finance on vehicles and credit cards.

Can overseas assets be included​​​ in a property settlement?

A property settlement in Australia will include any property you or your ex-partner currently have, including property that is overseas, for example, cars, houses or money in foreign bank accounts.

Although Australian courts can make an order about a foreign asset, the enforceability of the order will depend on whether it can be registered in that country. In addition, if the order is about a foreign asset being sold or transferred, you will need to get legal advice from a lawyer in the country where the property is held.

If you or your ex-partner has property overseas, you should get legal advice.        

Is property acquired after sep​aration or divorce included in a property settlement?

Usually, the Court will consider all property that parties own at the time of the hearing, including property acquired before, during or after separation. The Court will use its discretion to decide whether to consider property acquired after you and your ex-partner have separated.

You should get legal advice about your situation.

What types of orders can the court ​​make?

The Court can make different types of orders, including orders that:

• tell one person to transfer ownership of property to another person
  
• require the family home to be sold
• outline how personal property is to be divided
• outline how superannuation will be split
• require one person to pay the other person a sum of money.

To decide what orders you should apply for in your property settlement case, you should get legal advice.

Is the property divi​​ded 50/50?

In a property settlement matter, there is no standard entitlement, right or percentage split. Each case is different and will be considered on its own circumstances.

Is superannuation included in ​​a property settlement?

Superannuation is considered property and will be included in a property settlement. It can be split like other property. However, splitting superannuation does not convert it into cash. It remains in a superannuation fund and is still subject to superannuation laws, including about when it can be accessed.

If you want to negotiate a super split with your ex-partner, you can:

• talk to your ex-partner and enter into an agreement to split the superannuation fund. Both you and your ex-partner must provide a signed certificate from a lawyer stating that you have each received independent legal advice.
  
• apply for consent orders to split the superannuation
• apply to a Court for property orders.
  

For more information, see Finances and property: Superannuation on the Federal Circuit and Family Court of Australia website. 

If you want to make a claim on your​​ ex-partner's superannuation, you should get legal advice.​​

How can I find out what superannuation my ex-partner has?

Under the duty of financial disclosure, you and your partner must provide to each other the documents that show your current superannuation information. You can request this information from your ex-partner if they haven’t provided it to you already.

If your ex-partner refused to provide you with their superannuation information and you are a party to property proceedings, you can apply to Federal Circuit and Family Court of Australia for your ex-partner’s superannuation information held by the Australian Taxation Office (ATO).

To do this, you must apply online via the Commonwealth Courts Portal.

You should receive a response to your request within seven days. The response will be visible to all parties involved in your matter.

The information held by the ATO may not be the most up-to-date. Once you know what fund your ex-partner is a member of, you should request up-to-date information from the fund.

For more information, see Visibility of superannuation for property settlement proceedings on the Federal Circuit and Family Court of Australia website.

How does the Court decid​​e how property is divided?

When deciding what orders to make, the Court will consider:

• the financial and non-financial contributions made by each of you to the property before, during and after the relationship
• whether you or your ex-partner have done anything that affected the value of your property, for example, by gambling or destroying property
  
• any future needs you and your ex-partner may have, for example, the care of children
  
• any agreement you and your ex-partner entered into, such as a financial agreement
• what is just and equitable in your circumstances.
  

Can the Court order us to sell th​​e home?

The Court can make an order that your home be sold as part of the property settlement. The Court may also consider other orders, such as an order that the property be transferred into one person's name.

If you are concerned that the Court will order you to sell your home, you should get legal advice.

Will we have to pay transfer duty if we s​​ell or transfer title on the home?

Transfer duty is usually paid whenever there is a transfer of property. However, an exception to this is where property is transferred after the break down of a marriage or de facto relationship.

To be exempt, you will need to obtain court orders or make a financial agreement.

There are new requirements for transactions entered into on after 19 May 2022.

For more information, see Duties Act evidentiary requirements: Section 68 on the Revenue NSW website.

How can I enforce property orders?

There are different ways of enforcing property orders depending on the type of order and what hasn't been done.

For more information, see Finances and property: Compliance and enforcement on the Federal Circuit and Family Court of Australia website.

If you want to enforce property orders, you should get legal advice.   

Can we apply for a property orders out of time?

An application for property orders must be made within:

• 12 months of your divorce becoming final, or
• two years from the date your de facto relationship ended.
  

If you apply outside of these time limits, you will need to seek leave (permission) from the Court.

The Court may accept an out of time application if you have a good reason for applying late, or if hardship would be caused, or where you and your ex-partner agree to it. 

If you need to apply for property orders out of time, you should get legal advice.   

Can I have my property matter transferred to the Federal Circuit and Family Court of Australia?

You may be able to have your property matter transferred from the Local Court of NSW to the Federal Circuit and Family Court of Australia if:

• the value of property in dispute is $20,000 or over, and
• the respondent is seeking a different order to the applicant.

In some situations, the Local Court will transfer the matter to the Federal Circuit and Family Court of Australia if the Court believes it is appropriate to do so, regardless of whether you or the other party wants the transfer.

If you want your property matter transferred from the Local Court, you should get legal advice.     

What is a judicial settlement conference?

A judicial settlement conference is dispute resolution for parties who have exhausted all other measures of alternative dispute resolution, which is conducted by a Judge in the Federal Circuit and Family Court of Australia. This takes place before a hearing has commenced.

If you would like to attend a judicial settlement conference or you have been asked to attend one, you should get legal advice. 

Can I have a property sett​lement case in another State or Territory transferred to NSW?

You may be able to apply for your matter to be transferred to a court in NSW, but you should get legal advice about your circumstances.

Do I have to see my ex-partner at court if there has been family violence against me?

If you are going to court for a property matter you may see the other party at court.

If you are concerned about attending court at the same time, or being in the same room, you should tell the Court as soon as possible. Safety measures can be put in place so that you can attend court safely.

If there is any allegation of family violence, the Court must take that into account to make decisions about how proceedings will run.

If you have any concerns for your safety, it is important you let the Court know.

For more information, see Safety at court on the Federal Circuit and Family Court of Australia website.

Will the other party cross-examine me if there has been family violence?

In property matters, parties can't cross-examine one another where one party has alleged family violence by the other party and:

• either party has been convicted of, or charged with, an offence involving violence or a threat of violence towards the other party
  
• a current family violence order (other than an interlocutory order) applies to both parties
  
• an injunction has been made for the personal protection of one party against the other party, or
  
• the Court decides it is inappropriate.  
  

The Court will then make orders that the parties must be cross-examined by a lawyer.  

A self-represented party can either:

1. ask a private lawyer to represent them, or
   
2. apply to Legal Aid for a Legal Aid lawyer to represent them. 
   

If Legal Aid represents a party for the cross-examination, this does not mean that they will have ongoing representation.

If a party is ineligible for Legal Aid, they must get a private lawyer to represent them or they will not be allowed to cross-examine the other party.

For more information, see How the Court considers safety and risk on the Federal Circuit and Family Court of Australia website.

What happens if family violence is alleged but the court allows cross-examination? 

Where one party has alleged family violence by the other party, but the above criteria does not apply to stop cross-examination by the other party, the Court must make sure there are appropriate protections for the alleged victim.

This can include:

• moving the venue to a safer location
  
• allowing the alleged victim to give evidence by video or audio link
  
• limiting or disallowing cross-examination of a particular witness
  
• disallowing questions that are offensive, abusive, hectoring, misleading, confusing, or that have been asked in an inappropriate manner or tone
  
• shielding the alleged abuser from the view of the victim
  
• closing the court to the public 
  
• excluding certain people from being in the courtroom
  
• in child-related matters – receiving into evidence a transcript of court or tribunal proceedings. 
  

If you have any concerns for your safety, it is important you let the Court know.

For more information, see Safety at court on the Federal Circuit and Family Court of Australia website.

If you are worried about attending court because of family violence, you should get legal advice.

Is ​​my ex-​p​artner​​ required to financially support me after separation?

There is no automatic entitlement to receive spousal maintenance from your ex-partner after separation.

You should try to reach an agreement on spousal maintenance when you are negotiating a property settlement. If you can't reach an agreement, you can apply to the Court for an order for spousal maintenance if you can show that you require financial support and that your ex-partner has the capacity to pay maintenance.

Before making an application for spousal maintenance, or if you require urgent financial assistance after you separate from your ex-partner, you should get legal advice.

For more information, see Finances and property: Spousal maintenance on the Federal Circuit and Family Court of Australia website.

Can I app​ly for​​ spousal maintena​n​​ce?

If you are unable to support yourself, you may be able to apply to the Court for an order for spousal maintenance. This is different to child support - financial support for your children.

When applying for spousal maintenance, you will need to show the Court that you need support because:

• you are caring for a child of the relationship
• you cannot work due to your health, disability or age
• you no longer have the necessary skills to gain employment
• you are unable to support yourself due to other good reasons.
  

You will also need to show that your ex-partner can pay.

If you require immediate financial support, you can apply for urgent spousal maintenance.

The Court will consider a wide range of factors when deciding whether to make an order for spousal maintenance. ​

Before applying for an order, you should get legal advice about your situation.

For more information, see Finances and property: Spousal maintenance on the Federal Circuit and Family Court of Australia website.

​​When can I apply for spousal m​aintenance?

​You can apply for spousal maintenance within:

• 12 months of your divorce becoming final, or 
• two years from the date your de facto relationship ended.

To apply outside of these time limits, you will need to seek permission from the Court.

Before you apply for spousal maintenance, you should get legal advice.

For more information, see Finances and property: Spousal maintenance on the Federal Circuit and Family Court of Australia website.

​What if​​ I ​wasn't ​married or in​​ a de facto relationship?

If you weren't married to your ex-partner or do not meet the legal requirements for a de facto property settlement, you may still be able to apply for a property settlement if you can show you were in a close personal relationship. The laws that apply in this situation are different, as your property settlement application will be under the Property (Relationships) Act 1984 (NSW) not the Family Law Act 1975 (Cth).

To apply for a property settlement, you will need to show:

• you were in a close personal relationship
  
• you have made substantial contributions, or have a child together, or have lived together for at least two years
  
• you have lived together in NSW for at least half of your relationship, and
• one of you lives in NSW at the time the application for a property settlement order is made.

An application for a property settlement in this situation can be made to the Local, District or Supreme Court of NSW depending on the value of the assets.

Before taking any legal action, you should get legal advice.

If you were not in a close personal relationship, but still want to claim or keep the other person's property, you should get legal advice as there may be other options.     

What is a close personal relatio​nship?

A close personal relationship is where you are:

• unmarried adults living together (even if you are related)
  
• where one or each person gives the other domestic support and personal care (but not for a fee or reward or on behalf of another organisation).