Money and property
Working out how to divide your money and property after a relationship breakdown can be stressful. Usually after separation it is fair that property is shared, however the way that it is shared will depend on your individual circumstances. It may not matter that the property may only be in one person’s name, and even if you earn little or no money, you may still have rights to property.
- What is property?
- Working out your property settlement and going to court
- How should property be divided?
- Related links
- Next steps
What is property?
Property includes all assets and debts owned by both people, whether it is in both names, or just one person’s name. Property may include:
- the family home
- bank accounts
- insurance policies
- family trusts
- debts including mortgages, loans, credit cards and personal debts
It is important to try to sort out your property settlement as soon as possible after separation.
If you need to go to court or want to apply to the court for consent orders, time limits do apply.
You don’t have to wait until you are divorced. If you get a divorce and haven’t worked out your property arrangements yet, you must apply to court for property orders within 12 months of your divorce becoming final.
If you were in a de facto relationship, you must apply within two years of the date of separation.
If you do not apply within these time frames, you will need permission from the court to apply for property orders. This is not always granted.
Working out your property settlement and going to court
Separated couples are encouraged to agree on arrangements for their property without going to court. Going to court is costly, time consuming, and may not result in a decision that you agree with.
The family law courts require people applying for property settlements to make a genuine effort to resolve their matter before filing their application. You may attend Family Dispute Resolution, another mediation service, or try to resolve your matter with the help of a lawyer.
Even if you plan to work out how to divide your property without going to court, it is important that you seek legal advice.
If you can agree on how to divide your property, you can:
Informal agreements can be made without the help of a lawyer. However, they are not enforceable by a court, which means that you may end up having to go to court in the future if you or your former partner wants to ask for another property settlement. It may make more sense to make a financial agreement or have consent orders made.
A financial agreement is a written document that states how your property is to be divided. It can be made before, during or at the end of your relationship. It does not have to be approved by a court, but there are strict rules about financial agreements. You must obtain legal advice if you want to make a financial agreement.
A consent order is a written agreement that is approved by the court. When a consent order is made, it has the same effect as a court order made after a hearing.
Before approving the agreement, the court will consider whether the agreement is fair.
Applications for consent orders must be filed in the Family Court of Australia, or if you are in Western Australia, the Family Court of Western Australia.
How should property be divided?
No one can tell you exactly how your property should be divided. It is important that you seek legal advice.
If your property settlement is determined by the family law courts, after all the evidence is heard, the judicial officer will decide whether it is appropriate to make an order for property based on the facts of your case. If the court decides to make an order, it will decide what is just and equitable (or fair) in your circumstances.
When working out what is fair, the court will look at:
- your assets and your debts, and what they are worth when added together
- direct financial contributions by each party to the relationship, such as wages
- indirect financial contributions by each party, such as gifts or inheritances
- non-financial contributions to the relationship, such as caring for children
- future requirements – such as age, health, financial resources, caring responsibilities and capacity to earn
The way your assets and debts will be shared between you will depend on the individual circumstances of your family.
Superannuation is becoming a larger asset for many people. Although it may be many years before you are able to access superannuation, it is important to consider it as part of your property settlement.
Superannuation splitting laws treat superannuation as a different type of property. Separating couples are able to value their superannuation and split superannuation payments. Splitting superannuation does not mean that you will be able to access cash after it has been split – it is still subject to superannuation laws and may be accessed upon retirement.
Different types of superannuation may be valued and split in different ways. It is important that you seek legal advice in relation to your own circumstances.
De facto relationships in Western Australia
If you were in a de facto relationship in Western Australia, different rules apply. In Western Australia, de facto partners are not able to split their superannuation. However, the Family Court of Western Australia will still take superannuation into account when deciding how to divide property between de facto partners, and may make adjustments to the split of property to take superannuation into account.
Natalie and Patrick are married and have adult children. They decide to separate and plan to divorce. Natalie talks to a lawyer about what needs to be done to divide their property. Natalie and Patrick begin by working out all the property they own, including the family home, their cars, superannuation, as well as their debts including the mortgage on the family home, and their credit card.
Natalie and Patrick have been trying to work together to divide their property, but they are finding it hard to know what to do, and what would be a fair way to split the property. They both decide to get independent legal advice. Patrick has decided that if they can come to an agreement with the help of their lawyers, they should apply to the Family Court for consent orders, so that their written agreement will be legally enforceable.
Both Natalie and Patrick hold superannuation accounts. Patrick has a larger amount of superannuation as Natalie took time out of the workforce when their children were younger. With the help of their lawyers, they are able to have their superannuation valued and agree on a split. Because Natalie and Patrick are both still working, they are not able to access the superannuation after it has been split – they will have to wait until they reach retirement age.
Gather together all your financial documents, including pay slips, bank statements, tax returns, rent/mortgage agreements and investment documents.
Seek financial advice.
Seek legal advice.
Talk to the Department of Human Services about your relationship status change.
Check out ASIC MoneySmart website pages about divorce and separation.