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Property, debt, and financial resources

Information about what property, debt and financial resources are included a family law property settlement.

Property

A property settlement can cover all types of property, including:

  • real property, such as houses and land
  • businesses, companies, or trusts
  • vehicles, such as cars, motorbikes, caravans, and boats
  • shares, cryptocurrency, and other financial products
  • pets
  • furniture and household items
  • jewellery and other personal belongings
  • cash.

This includes property in Australia and overseas, regardless of what type of property it is and where the property is located.

It also includes property purchased:

  • prior to your relationship
  • during your relationship
  • after separation.

Property doesn’t include a person’s income, or their capacity to borrow money.

Debt

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.

It can cover secured and unsecured debts.

A secured debt is tied to specific property like a house or car. The property acts a security for the loan. If you don’t meet the repayments, the creditor can repossess the property you put up for security to recover the debt. Some examples include:

  • a mortgage
  • a car loan
  • rent to buy.

An unsecured debt is not tied to specific property. If you don’t meet the repayment, your lender must take legal action to recover the debt. Some examples include:

  • credit cards
  • unsecured personal loans, including buy now pay later loans
  • utilities – electricity, gas, phone and internet
  • student loans
  • tax debts.

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.

Financial resources

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.

Superannuation

Generally, most superannuation can be divided in a property settlement like other property.

The balance of a superannuation fund can be split by:

  • a superannuation agreement (a binding financial agreement that deals with superannuation), or
  • a court order.

Splitting a superannuation balance doesn’t convert it into cash. As such, you can only access it when:

  • you turn 65, even if you are still employed
  • reach the ‘preservation age’, and retire or start transitioning to retirement
  • you meet the early access requirements.

You can only access your superannuation early on limited grounds, including for:

  • severe financial hardship
  • compassionate grounds
  • a terminal medical condition
  • a temporary incapacity
  • a permanent incapacity
  • a balance is less than $200 and your employment has been terminated.

If, and how, the balance of a superannuation fund will be split will depend on the circumstances of the case. Superannuation doesn’t have to be divided in the same percentage as property.

The balance of overseas superannuation funds can’t be split like Australian funds.

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