How the law works
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If we separate, can we agree on how we will divide our property?
It is a good idea to try to agree about how to divide your property, rather than going to court. This is called a 'property settlement'.
If you need help reaching agreement, a mediation service may be able to help. Mediation is a type of dispute resolution, where an independent person helps you and your ex-partner try to sort out any disagreements you have. Mediators do not give legal advice, and will try to help you to reach an agreement that is fair to each of you.
If you wish to receive help with your relationship with your ex-partner, Legal Aid Queensland, a Family Relationship Centre or other dispute resolution service may be able to assist or refer you to services that can help, such as personal or family counsellors.
You can also get a lawyer to negotiate with the other person, or their lawyer, and if you reach an agreement you can ask to have consent orders made.
Consent orders are orders made by agreement and they have the same force as any other court order. The court will not make any order about property unless it is 'just and equitable', that is, fair to both sides.
Does the law say I must make an agreement about dividing property?
One of the intentions of the Family Law Act is to encourage people to agree on how property is divided. But property orders and legally binding agreements are very difficult to change, so you should get legal advice before you sign a property agreement.
If you try to agree but cannot, you may need to apply to court. Remember that you must follow the court's 'pre-action procedures', which are steps you must take before you can apply.
Who can apply to court for a property settlement?
You can only apply to a court for a property settlement under the Family Law Act if you are or were married. If you are not married (and are in a de facto or same-sex partnership) then different laws operate in each state and territory and you may need to go to a different court.
The law is changing for unmarried partners throughout Australia, so get legal advice.
Which court can decide our property dispute?
Both the Family Court of Australia and the Federal Magistrates Court of Australia can decide property disputes.
When can I apply for a property settlement?
If you are married you can apply for a property settlement from the time of separation. However, once you are divorced, if you want the court to make orders, you must file an application for property orders within 12 months of your final divorce.
In special circumstances you can apply to the court for a property settlement if you are 'out of time' - if more than 12 months have passed since your divorce is made final. Get legal advice.
If you were not married there will be different time limits, depending on which law applies in your state or territory.
The law is changing for unmarried partners throughout Australia, so get legal advice.
What is a conciliation conference?
If you apply to the court for a property settlement, you usually have to go to a conciliation conference before any final hearing. In that conference you, your former partner and any lawyers involved will discuss the settlement with a court registrar or independent professional appointed by the court.
The aim is to settle the property dispute by agreement, instead of the court making the decision. If you reach agreement at the conference you can have the court make consent orders that reflect the agreement.
Acknowledgement - Prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.