If your marriage or de facto relationship ends, property may be divided between you and your ex-partner. This is called a property settlement.
It is a good idea to get legal help before you start negotiating a property settlement and before you sign any agreement.
No. The law relating to property settlement applies to married and de facto couples when they separate.
If you separated from a de facto partner before 1 March 2009, you have different legal rights that you should talk to a lawyer about.
You can start working out the details of a property settlement as soon as you have separated.
Married couples do not have to be divorced to work out a property settlement.
It is usually best to get a property settlement before you apply for a divorce because there is a strict time limit to organise a property settlement after divorce.
What is property?
Property includes assets (things you own) and liabilities (things you owe money on).
All the property owned by you and your partner, either in your joint names or in your individual names, is known as the “asset pool”.
What do we do about our debts?
Debts are part of the asset pool, even if they are not in your name. As well as working out who gets what property, you will need to work out who is responsible for which debt.
Once you are divorced you have 12 months to work out your property settlement or go to court to divide property.
De facto couples have 2 years from the date of separation to work out their property settlement.
Your property settlement will depend on your situation, so will probably be different from others you may have heard about.
To work out what a fair split is, lawyers and the Court look at:
If you leave the family home, you will not lose your rights to the house or your things.
Who keeps the family home depends on your total asset pool, the contributions you have both made and your future needs.
You need to consider who can continue to pay the mortgage, whether one of you can pay out the other, and if you have children, where they will live most of the time.
Sometimes the family home will have to be sold so that each partner gets their share of the property.
It depends on how long you have been in a relationship for.
If it has been a long relationship, during which both of you have made various contributions, then your ‘initial contribution’ of bringing property into the relationship may be less relevant than if your relationship was short.
Yes. Unpaid work as a homemaker and/or parent counts as a contribution to your asset pool.
If you were studying, you may still have made non-financial contributions by doing the household work (such as cleaning, washing clothes, shopping and cooking).
If you have no income, and your ex-partner is not giving you any money or paying the bills, then you may be able to apply to Court for an order for spousal maintenance.
Spousal maintenance is when one person pays money so that their former partner has enough to live on.
Your ex-partner has a responsibility to provide you with financial support if you are unable to pay your own expenses. You must show the Court that you have a need for financial support, and that your partner has the ability to pay this support to you.
If you buy the car before finalising a property settlement, the car is part of the asset pool.
Whether your partner has a claim on the car may depend on what money you used to buy the car.
No, this is not right. Even if all the property is in your ex-partner’s name, you may be entitled to something.
If the family home is in your partner’s name, you may need to lodge a caveat on the title of the property. This will prevent your ex-partner from finalising a sale or re-mortgaging the family home before you have agreed on a property settlement. You should get legal advice as soon as possible.
You may be able to get a court order to stop your partner using bank accounts and/or selling property. A court order is a document from the Court that tells someone they must do something. You should get legal advice as soon as possible.
If it is safe to do so, it is useful to collect documents about you and your partner’s finances and property.
If you are planning to leave the home, get copies of statements that show bank account numbers, superannuation amounts, and membership numbers for both you and your partner.
You may also want to direct your salary and any government benefits into a bank account in your sole name and change the nominated beneficiary of any superannuation policy you have.
If possible, try to see a lawyer before you separate to get advice about your circumstances. If it is not safe for you to delay leaving the home, see a lawyer once you have left.
You should write out a history of your relationship. This helps the lawyer work out what your contributions have been during the relationship. This should include:
If you can, you should also prepare a list of any property you and your partner own and a rough value of it. Include details of any debts such as money owed on credit cards, a mortgage, or personal loans.
If you have reached agreement about your property, you should ask the Federal Circuit and Family Court of Australia to formalise the agreement and make court orders.
This will make the agreement final and binding on each of you.
Once you have made a final agreement you or your partner cannot make a further property claim unless there are exceptional circumstances, or you are applying for spousal maintenance.
You will need to tell the Court who is going to get what, including financial details. The court must be satisfied that the agreement you have reached is fair.
You can use the Court’s do-it-yourself kit to apply for the court orders from:
You may not have to go to court if you apply for court orders in this way.
Before you sign your documents, you should both get independent legal advice about whether it is a fair agreement.
You should each get independent legal advice and ask your lawyer to help you negotiate an agreement with your ex-partner.
If negotiations do not result in an agreement, you may have to make an application to the court for a property settlement.
Remember that once your divorce is final you only have 12 months to make an application to the Court for a property settlement unless there are exceptional circumstances.
You should see a lawyer as soon as possible if you have been divorced in the last 12 months.