Below is some basic information about how the family law system deals with property when people separate. It is not provided as legal advice. If you are considering separation or have separated, you should seek legal advice before making a decision about what to do. Call 1800 684 055 to make an appointment to talk to a lawyer.
Separation and property – how does it work?
When you separate, you and your former partner will need to work out what to do with the money, property and assets that you own.
The Family Law Act 1975 is the law that sets out what happens with separating families regarding divorce, parenting arrangements, property and spousal maintenance.
When working out how to divide property, the law looks at everything the couple owns and earns (including superranuation and debts), and divides these according to what it considers to be fair.
In Australia, the law does not look at why the parties have separated or whose fault it is. Dividing property is not about who is right or who is wrong.
Domestic violence within the relationship can affect the way the law works. It is important to let your lawyer know if you have experienced, or are experiencing, domestic violence.
When should I apply for a property settlement?
When you separate, it’s important to get legal advice about your rights, and to get an idea of what the law says would be a fair division of your property.
If you get a divorce, you have 12 months from the date of the divorce to apply to the Court for property orders. If you are in a defacto relationship, you must apply within 2 years of the date of your separation.
What is included as ‘property’?
For the purposes of a property settlement, property includes real estate, money (cash and in bank accounts), investments, insurance policies, inheritances, shares, superannuation, jewellery, motor vehicles and any other assets. It also includes any debts including mortgages, credit cards, loans and personal debts.
Both you and your former partner must give full and frank disclosure of your financial affairs.
Making an agreement
You and your former partner can agree on how you will divide your assets and finances.
The agreement can be made into a court order called a consent order. When you apply for a consent order, the Court will only agree to make the order if it is ‘just and equitable’ – it must be fair to both parties.
You can also enter into a Binding Financial Agreement. This Agreement is not filed with the Court but must comply with the law to be legally binding.
How does the Court decide who gets what?
The law sets out a four step process to decide how property is divided:
- Identify all the property in the relationship.
- Look at each person’s contributions to the relationship. This includes financial contributions to property, as well as contributions as a homemaker and a parent.
- Consider other factors set out in the law, including future earning potential, length of relationship, care of the children.
- Work out how property will be divided, making sure it is fair and reasonable in all the circumstances.
How can CAWLS help?
We can provide advice about property settlements as well as other family law issues (like parenting arrangements).
CAWLS is a free and confidential legal service for all women in Central Australia.
We offer free advice sessions to all women. We may be able to provide ongoing representation and assistance in some cases.
Where necessary, we can assist with referrals to other legal services and support agencies.
Call 1800 684 055 to make an appointment to talk to a lawyer.
Further information and support
- The Family Law Pathways Network Service Directory contains a list of local support services for separating families.
- The Family Law Courts have lots of information for separating families, including the Marriage, Families and Separation brochure.
- Relationships Australia: relationship support services, including counselling services for divorcing/separating couples, and Family Dispute Resolution services.
- Family Relationship Advice Line: 1800 050 321. Assistance for families affected by relationship or separation issues.
- Family Relationships Online: information and advice about family relationship issues for all families (whether together or separated), including information about services that can assist them to manage relationship issues, including agreeing on appropriate arrangements for children after parents separate.
- A useful list of links to information about family law available online.