Fact sheet – Dividing property and finances after separation

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I’ve separated but we weren’t married - does that matter?

Family law is generally the same regardless of whether you have been married or de facto. A de facto relationship is defined as a relationship where two people who are not married or related by family have been living together as a couple on a 'genuine domestic basis'.

Do I need to go to Court?

The law prefers that separated couples work through all details of their separation without involving the Court. However, if you and your ex can’t agree on how your assets and finances should be dealt with, you may ask a Court to make a decision for you.

If you need to go to Court, the Court will take into account a number of factors relating to you and your ex, including:

  • contributions to the relationship (both financial and non-financial)
  • contributions as a homemaker and parent
  • care arrangements for any children of the relationship
  • financial resources
  • any future financial needs of both you and your ex-partner
  • the nature and length of the relationship, and
  • whether domestic violence impacted you or your ex-partner during the relationship.

If you go to Court, the Court will make an order that will determine what assets or debts you and your ex will each have.

What if we have children?

If you have children, you and your ex continue to have a responsibility to ensure they have what they need. The Court calls this a parent’s financial responsibility.

If your children live with you more than your ex, you should make an application to the Child Support Agency. Child Support will look at your and your ex’s circumstances and assess whether one parent should pay the other some money to help with providing for the child’s needs. This process does not generally involve the Family Court.

Where can I get help to agree on our finances?

Sorting through financial and property details with an ex can be hard. A lot of separating couples need skilled help by someone outside.

Mediation may be a useful way to help work out an agreement with your ex-partner. A mediator will not take anyone’s side, but help you and your ex-partner talk in a safe environment.

You can contact Relationships Australia to find help with mediation.

What is a ‘Binding Financial Agreement’?

Some people make decisions about their finances and record them in a binding financial agreement. Such an agreement may contain details of how property or financial resources will be dealt with in the event of a future breakdown. In particular, the agreement may cover who gets what when it comes to the property you have individually and as a couple, whether one of you should receive ongoing support from the other, and how your superannuation may be divided. You can make a binding financial agreement at any time - before, during or after a relationship has ended.

To be binding or legally enforceable a financial agreement must be signed by both you and your partner, must contain a statement that prior to signing each of you received independent legal advice and a certificate signed by the legal practitioner who gave that advice. In addition, there must be evidence that the agreement has not been terminated and has not been set aside by a Court.

If after separation you and your ex don’t have a binding financial agreement, but can agree on how your joint assets and ongoing finances should be handled, you can apply to the Court for Consent Orders. This will require both you and your ex-partner completing an application form by providing financial information and a written agreement as to how you will divide your assets and debts. The Court will accept the settlement you have reached and make orders to reflect that agreement, provided that it is fair and equitable.

What are Maintenance Orders?

In some cases, it might be necessary to apply to the Court for a maintenance order. This is financial support paid by one person to their ex or ex in circumstances where their ex is unable to adequately support themselves.

The law says that in some situations a person has a responsibility to financially assist their ex if that person cannot meet their own reasonable expenses. The amount of the support depends on what the other person can afford to pay.

Maintenance orders are usually made to be paid as a single lump sum as part of the whole property settlement but they can also be made as periodic payments before the final property order is made.

What time limits apply?

If you and your ex cannot agree on how to divide your assets and debts and you need a Court to be involved in making a property and/or maintenance order you have to do so within:

  • 2 years after the relationship ending, if you were de facto
  • 1 year after the time of your divorce, if you were married.

In limited circumstances, the Court may extent the time period.

Last updated: 20-April-2021