The basis on which both married and de facto couples can finalise their property settlement is detailed in the Family Law Act 1975.

If it is appropriate to make an adjustment of your property, the Court will consider the following:

What is your Property Pool?

The first step in determining how to divide property is to identify and value the property pool. This means all property in either joint or sole names held by you and your partner. Property includes real estate, an interest in any business, company, trust or partnership, shares, cash in the bank, motor vehicles, boats and superannuation. Any liabilities of the relationship are also taken into account.

Who did what?

The next step is to consider the contributions made by both parties at the commencement of the relationship, during the relationship and after separation. There are a number of different types of contributions including:

  • Financial contributions, including any inheritances, gifts or lotto wins
  • Non-financial contributions such as renovating a property
  • Contributions as homemaker and parent

What about the future?

When looking to divide your property, it is necessary to look at factors into the future that may require an adjustment of the percentages. These factors include:

  • The age of the parties
  • Any health issues
  • What are the care arrangements for the children
  • Is there any income disparity between the parties
  • The effect of the proposed agreement on either party’s income

Is the outcome Justice and Equitable?

The final step necessary in dividing property is to apply the percentages to your property and consider how it can be divided so that is just and equitable (fair). Matters such as whether assets are to be sold and whether superannuation should be split to achieve a fair outcome are considered.

How do I go about finalising my property settlement?

If you reach agreement about the division of your property with your partner, it is important to have this agreement formalised by a Court Order so that neither party can come back later. The agreement reached can be formalised by way of Consent Order (your agreement which gets filed in and made by the Court) or Binding Financial Agreement (detailed in Binding Financial Agreements Information Sheet). You can find further information about finalising the agreement reached by you and your partner on the Family Court website. Ultimately if you and your former partner cannot reach agreement, you may need to seek the assistance of the Court who will make the decision for you. It is important to get early advice about your property matters so that you can weigh up your options for getting on with your life.

Are there any time limits that I need to be aware of?

If you are divorced, you have 12 months from the date of the divorce to file your proceedings in a Court. Parties may only bring proceedings outside of this time in limited circumstances. For de facto couples, there is a 2 year time limitation from the date of separation with which to bring proceedings for a property settlement.