Who can make a property or maintenance agreement

Married couples

If you and your ex-partner are married, you can negotiate a finance or property agreement, even if you haven’t applied for a divorce yet.

If you were married overseas, you can negotiate a finance or property agreement in Australia as a married couple if your marriage was a valid legal marriage according to the laws of the country where you got married. 

If your marriage was not a valid legal marriage, you may be able to negotiate an agreement as a de facto couple instead.

De facto couples

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:

• the length of your relationship
• whether you and your ex-partner lived together, and if so, for how long
• the financial arrangements between you and your ex-partner
• whether you and your ex-partner own property together
• how you cared for your children
• how other people saw your relationship.

You can negotiate a finance or property settlement with your ex-partner partner if:

• you were in a de facto relationship for least two years
• you have a child together
• your relationship is or was registered under a prescribed law of a State or Territory, or
• you and/or your ex-partner have made substantial contributions which would lead to serious injustice if any order was not made.

You must also have a geographical link to the courts jurisdiction. This means you and your ex-partner:

• currently live in Australia, or
• were living in Australia when your relationship broke down.

Close personal relationships

If you weren’t married to, or in a de facto relationship with, your ex-partner, you may still be able to apply for property or maintenance orders if you can show you were in a close personal relationship.

These orders are made under the Property (Relationships) Act 1984 (NSW), not the Family Law Act 1975 (Cth).

To apply for orders, you will need to show:

• you were in a close personal relationship
• you have lived together in NSW for at least one-third of your relationship, and
• your or your-ex-partner lives in NSW when you apply for property orders.

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.

This does not include relationships where support or care is provided for a fee or reward, or on behalf of another organisation such as a government agency.

The court must also be satisfied that:

• you and your ex-partner lived together for at least two years
• you and your ex-partner have a child together
• you have made substantial contributions for which you would not be adequately compensated, and a serious injustice would result, if orders were not made.