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Dividing your property

Does it matter if we were not married?

No. If you are in a defacto (including same-sex) or registered relationship you can apply for a property settlement and/or spousal maintenance under the Family Law Act.

Can we come to an agreement?

It is a good idea to try to come to an agreement about property if possible.

An agreement can be made into a court order (called consent orders) which people must then follow. Agreements lodged with the court are more difficult to change (except by agreement). Even if both of you agree, the court will not make an order unless it is ‘just and equitable’, which means fair to both sides. The aim is to make orders that are final so you do not have to come back to court.

Who can help?

You can get a lawyer to help you negotiate with your former partner. Even if you do not use a lawyer to help with negotiations, it is important you get legal advice before signing any agreement.

There are also family dispute resolution services that can help you sort out an agreement. A Family Relationship Centre may also be able to help if there are children involved as well as property, but they cannot give you legal advice.

A financial counsellor can help you with any financial difficulties. See ‘Where to go for help’.

When should I apply for a property settlement?

You can apply for a property settlement at any time after separation, but it is important to try to sort it out as soon as possible. Usually there will be debts to be sorted out, as well as assets to divide, so do not delay.

If you get a divorce you must apply to court for property orders within 12 months of the actual divorce date, or you need special permission. If you are in a defacto or registered relationship, you must apply within two years of the separation date.

What property am I entitled to?

There are many things that must be considered in deciding who gets what property, especially if children need support. It may not matter whose name is on the document (such as a home title) or who bought an item or owes the debt. Even if you earn little or no money you can still have rights to property.

What should the property settlement list?

The settlement should list:

  • real estate, including the family home
  • money held as cash or in bank accounts
  • investments
  • insurance policies
  • inheritances
  • shares
  • superannuation
  • jewellery
  • any other assets
  • any debts including mortgages, loans, credit cards and personal debts.

Property includes assets and liabilities owned individually, with another person or by a family trust or family company.

How does the court decide who gets what?

There is a four-step process under the Family Law Act.

Step 1

Identify and value all property of the relationship (including debts). This property can include things you got before or even after the relationship.

Step 2

Take into account what each person has given to the relationship (contributions) including earnings, savings, gifts, inheritances or property owned before the relationship, improvements to property, and contributions as a home-maker and parent.

Step 3

Consider the other factors set out in the law, including:

  • how much money each person could earn in the future
  • age and health of each person
  • care and financial support of children
  • responsibility for looking after other people
  • the length of the relationship.

The law looks at all of these things in deciding what is a fair division. The law does not look at who left the relationship.

Step 4

Once the court has considered the first three steps, it must decide exactly how the property is to be divided, that is, who gets what. It must then consider whether the way the property is divided is fair and reasonable in all the circumstances.

What if I leave the house – do I lose my rights to property?

No. If you leave the house, you do not lose your rights to a share of the house, or other property. But get legal help, if possible, before you leave. Also think about what you might want to take with you. See ‘Separation and divorce’.

How can I protect my property?

Keep track of all assets and debts until financial arrangements are complete. You may want to take photographs, and other records. It may be possible to have a caveat put on a property title. A caveat is a warning to other people that you have an interest in the property.

You can also get court orders (injunctions) to stop property being sold or money being spent.

Act quickly and get legal help soon.

You can get detailed information about property and family law at www.legalaid.qld.gov.au

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