Finance and property

Dividing your property

There are a number of things you and your ex-partner may need to discuss when you separate, including:

• where you are going to live
• how you are going to pay the rent or mortgage
• how you are going to manage your bills
• what you are going to do with any pets.

For more information, see Dividing your property.

You should also update your:

• will
• superannuation beneficiaries
• life insurance beneficiaries
• Power of Attorney.

For more information, see Checklist: What to do after you separate (PDF, 98kb).

You may also need to speak to a lawyer about your visa.

For more information, see Visas and immigration.

If you and your ex-partner have a child together, you may need to negotiate a parenting agreement.

For more information, see Parenting.

Property settlement agreements

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 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.

For more information, see Property settlement agreements.

Financial disclosure

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.

To help you remember what documents and information you need to give to, or request from, your ex-partner, see Checklist: Financial disclosure documents and information (PDF, 50kb).

For more information, see Duty of disclosure on the Federal Circuit and Family Court of Australia website.

What are you entitled to in a property settlement

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. 

Pre-action procedures

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 Family law mediation.

Going to court

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.

For more information, see Going to court.

After court

If the court makes a property order, each person affected by the order must take all reasonable steps to follow it.

If a person fails to comply with the order you can seek legal advice, attend dispute resolution, and apply to the court. There are different ways of enforcing property orders depending on the type of order and what hasn’t been done.

The court may enforce an:  

• obligation to pay money
• order entitling a person to the transfer or delivery of personal property
• obligation to sign a document
• order entitling a person to the transfer or delivery of personal property
• order entitling a person to the possession of real estate.

The court can make a wide range of enforcement orders, including orders:

• to garnishee a person’s wages
• to seize and sell property, for example real estate or personal property
• requiring a bank to transfer money to a party
• preventing the transfer of property to third parties or the expenditure of money from bank accounts
• appointing another person to sign a document on behalf of the defaulting party
• for legal costs and interest.

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

Spousal and de facto maintenance

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.