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Dividing your property

Information about how to divide your property after you separate and before you negotiate a property settlement.

Staying in the family home

If your ex-partner left their personal belongings in the family home when they moved out, they have a legal interest in those things and are entitled to get them back.

If it is safe, you should arrange a time for your ex-partner to collect their personal belongings. If there is an Apprehended Violence Order (AVO) in place that stops your ex-partner from going near or entering the property, and the AVO proceedings are ongoing, they can apply for a Property Recovery Order.

For more information, see Property Recovery Orders.

Rental property

If you and your ex-partner live in a rental property your rights to stay in 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 the lease is in both names, or your ex-partner’s name only, you could contact your real estate agent or landlord to discuss transferring the tenancy into your name. You will need your landlords written consent to do this. Your landlord must not unreasonably withhold their consent to the transfer.

For more information, see the factsheet Transfer and sub-letting on the Tenants Union of NSW website.

If your ex-partner paid part or all of the bond, they may request a refund. They can send you a written request for a refund their share of the bond, less any rent owed or other reasonable costs, to be paid within 14 days.

For more information, see the factsheet Bond on the Tenants Union of NSW website.

If your ex-partner won’t agree to transfer the lease into your name, you should get legal advice.

If you have been the victim of domestic violence, you may be able to stay at the property and exclude your ex-partner.

If you have a final Apprehended Domestic Violence Order (ADVO) with an exclusion order, your ex-partner's part of the tenancy will be automatically terminated, but your tenancy will continue. An exclusion order is an order that says the defendant can't live at or come to the premises. If you have an exclusion order, it will be on your ADVO under the heading "Orders about where you cannot go".

If you don’t have a final ADVO with an exclusion order, you can apply to the NSW Civil and Administrative Tribunal (NCAT) for an order to terminate your co-tenant's tenancy in special circumstances. 

You can change the locks if you:

  •  have a final ADVO against your ex-partner with a condition that excludes them from accessing the property
  • have a court order, which gives you permission to do this.

If you change the locks, you should tell your landlord and provide them with a copy of any new keys.

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

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

Family 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 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.

For more information, see Getting an Apprehended Violence Order.

If you stay in the family home, and continues to pay the mortgage, this will be recognised as a financial contribution you have made when you negotiate a property settlement.

Utilities

If you stay in the family home, you should arrange to have all utility accounts in your name only. You may need to transfer or close your existing accounts to do this. If you leave your ex-partner’s name on the accounts, they will have access to your accounts and may be able to shut off your utilities.

If you are having difficulty paying for your utilities, you should speak to a financial counsellor. 

Leaving the family home

If it is safe, you should take all your belongings with you when you leave the family home you. If you leave some of your personal belongings at your former family home when you move out, you have a legal interest in those things and 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.

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

Rental property

If the lease is in your ex-partner’s name, you can leave the property whenever you like. You won’t be legally responsible for any rent once you leave the property.

If the lease is in your name or both names, you could contact your real estate agent or landlord to discuss transferring the tenancy into your ex-partners name. You will need your landlords written consent to do this. Your landlord must not unreasonably withhold their consent to the transfer.

For more information, see the factsheet Transfer and sub-letting on the Tenants Union of NSW website.

If you paid part or all of the bond, you can ask your ex-partner for a refund. To do this, you should send you a written request for a refund of your share of the bond, less any rent owed or other reasonable costs, to be paid within 14 days.

For more information, see the factsheet Bond on the Tenants Union of NSW website.

If your ex-partner won’t agree to transfer the lease, you can end your tenancy by giving the usual notice. If you end your tenancy early, you may have to pay a break fee unless the landlord agrees to waive it.

If the lease is almost finished, you can give your landlord notice that you are not renewing your lease.

For more information, see the factsheet You want to leave on the Tenants Union of NSW website.

If you have been the victim of domestic violence, you may be able to end your tenancy by:

  • giving a Domestic Violence Termination Notice to the landlord and all other tenants
  • applying to the Tribunal for an order ending your tenancy in special circumstances
  • giving the usual notice required.

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

If you transfer or end your tenancy, you will no longer be a tenant and you won’t be legally responsible for paying rent.

Family 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 the family home, and your ex-partner continues to pay the mortgage, will be recognised as a financial contribution they have made when you negotiate a property settlement.

If your ex-partner doesn’t maintain the property after you leave, this may affect its value and ultimately your property settlement.

Utilities

If you leave the family home, you should arrange to have your name removed from any utility accounts. If your name remains on these accounts, you are legally responsible for paying any amounts owing.

You should set new accounts in your name only when you move into your new accommodation.

If you leave your home, you will still be legally responsible for paying any debts in your name, or both names, regardless of who is living in the home, for example, your rates or an electricity bill in both your name and your ex-partner's name. If your ex-partner stays in the home and does not pay these debts, you will have to pay them. If you don’t, 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 for your utilities, you should speak to a financial counsellor.

Selling your home

If you and your ex-partner are both on the title to the property, it can't be sold unless:

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

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

The mortgage

If there is a mortgage on your family home, it is important that you and your ex-partner discuss how you will continue to make the repayments. The person whose name is on the mortgage contract is legally responsible to make the repayments. If you are both on the mortgage, you are each jointly and individually responsible for the debt. If nobody pays the mortgage, your lender can take action against both of you to recover the arrears and full amount owing on your mortgage.

If the mortgage is in one party’s name only, the lender can only take legal action against that person.

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 speak to a financial counsellor or get legal advice as soon as possible.

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

For more information, see the fact sheet Financial Hardship on the Financial Rights Legal Centre website.

Redrawing 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 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. 

Credit cards

Shared credit cards

If you and your ex-partner have a shared credit card, you should let your lender know you have separated.

You may want to talk to your ex-partner about:

  • how you are going to meet the repayments
  • cancelling your card
  • lowering the credit limit.

If you are having difficulty paying your shared debts, you should speak to a financial counsellor.

For more information, see the fact sheet Financial Hardship on the Financial Rights Legal Centre website.

Your credit cards

If your ex-partner has your credit card, or a second card on your account, 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 spends money on your credit card, you will be legally responsible for repaying the amount they have spent. If you don’t, your lender may take legal action against you to recover the full amount owing on your credit card, including the money your ex-partner has spent.

Other debts

You are legally responsible for paying any debts in your name or both names. 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, and credit cards. 

If you were pressured into signing a loan agreement, this is called financial abuse. You should get legal advice about your situation. 

For more information, see the factsheet Financial Abuse and Family Violence on the Financial Rights Legal Centre website.

If you are not sure what debts are in your name, you can apply for a free copy of your credit report.

For more information, see the factsheet Credit Reports on the Financial Rights Legal Centre website.

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.

Your money

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 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.

Your bank accounts

If your ex-partner has access to your bank accounts, you may want to speak to your bank 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. 

For more information about how to protect your bank accounts, see Mistaken and unauthorised payments.

Centrelink and child support

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.

If you are already receiving a payment, you must notify Services Australia of your change in circumstances within 28 days.

For more information about Centrelink payments, see Centrelink.

For more information about child support, see Child support.

Get financial help

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.

Pets

There are no specific rules that deal with disputes over animals after separation.

Where possible, you and your ex-partner should try to reach an agreement about how you will care for your pets.

If you can’t reach an agreement, you will need to resolve your dispute in the same way you resolve any dispute about property. Under the law, animals are considered property of the relationship and will be considered along with all other property in your case.