When a marriage or de facto relationship ends, one of the most important issues to resolve is how to divide property, debts, and financial responsibilities. This process, known as a financial or property settlement, can also involve arrangements for spousal or de facto maintenance, as well as child support or child maintenance.
Why Early Agreement Matters
If it is safe to do so, reaching an agreement with your former partner can save significant time, money, and stress. Negotiated agreements can be formalised through Consent Orders or a Binding Financial Agreement, providing clarity and legal enforceability without going through contested Court proceedings.
When agreement isn’t possible, dispute resolution or mediation is often the next step. If disputes remain unresolved, either party may apply to the Court for financial or property orders.
Tip: Divorce and property settlement are separate legal processes. You can resolve your financial matters before or after divorce.
Who Can Apply for Financial or Property Orders?
The Family Law Act 1975 (Cth) governs financial and property matters for both marriages and de facto relationships (including same-sex relationships, except in Western Australia where different laws apply).
Marriage
- You can apply for property settlement or spousal maintenance even if you are not yet divorced.
- Applications must generally be filed within 12 months of divorce becoming final.
De Facto Relationships
To apply, you must show that:
- You were in a genuine de facto relationship that has broken down, and
- You have a connection to a participating jurisdiction (all states and territories except Western Australia), and
- At least one of the following applies:
- The relationship lasted at least two years, or
- You have a child together, or
- The relationship was registered under state or territory law, or
- One party made substantial contributions, and serious injustice would result if an order was not made.
Applications must usually be filed within two years of the breakdown of your de facto relationship.
What Does the Court Consider?
Every financial settlement is unique. There is no formula to divide assets and debts; instead, the Court aims to make an order that is just and equitable based on your specific circumstances.
Key factors include:
- Assets and liabilities (what you own and owe, individually and jointly)
- Direct and indirect financial contributions, such as income, savings, gifts, or inheritances
- Non-financial contributions, like renovations, managing investments, or running a household
- Contributions to family welfare, such as caring for children or performing housework
- Impact of family violence on a party’s ability to contribute financially or non-financially
- Future needs, including age, health, income potential, care of children, and housing requirements
Superannuation can also be split as part of a settlement, though it is not mandatory.
Other Considerations
- Child support and maintenance are separate from property settlement and have no time limits.
- Bankruptcy or the death of a party can affect the Court’s jurisdiction.
- Priority Property Pool (PPP) Cases provide a simplified process where the net property pool is under $550,000.
