Dividing your property fairly

There are laws about how property should be divided when a relationship breaks down, including assets and liabilities. The laws apply to assets owned individually, with another person or by a family trust or family company.

The Family Law Act sets out what the court will consider when determining how property should be divided.

When to get legal advice

Get legal advice if:

  • you’re about to start negotiating to divide your property
  • you’re considering signing an agreement about property
  • you can’t agree with your ex-partner about how property will be divided
  • you’re considering attending family dispute resolution to work out an agreement
  • you’re considering applying to court for property orders.

How to get legal advice

Does it matter if we weren’t married?

No. Defacto (including same-sex) couples have the same rights to property and spousal maintenance under the Family Law Act.

Reaching an agreement

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. Even if you both agree, the court will not make an order unless it’s fair to both sides. The aim is to make orders that are final so you don’t have to come back to court.

Help with reaching an agreement

You can get a lawyer to help you negotiate with your former partner. Even if you don’t use a lawyer to help with negotiations, you should get legal advice before signing any agreement. You should get advice from a lawyer who has not given your ex-partner advice.

If you can’t agree with your former partner, you can apply to the court for property orders setting out how the property is to be divided.

You must take steps (pre-action procedures) before you can apply to the court.

See the list of pre-action procedures

Search our organisations directory for other services.

Online separation service—Amica

Amica is a secure online service developed by national and state legal aid commissions that helps separating couples to:

  • make parenting arrangements if they have children
  • divide their money and property simply.

The service:

  • guides you through a step-by-step process, and offers you information and support along the way to help you reach an agreement
  • can help you negotiate and communicate online with your former partner to reach an amicable agreement. If you can agree on a property settlement and parenting arrangements with your former partner, you can potentially save money on legal costs.

Amica is not suitable to split/divide superannuation.

Find out more about Amica

What property am I entitled to?

There are many factors that must be considered when deciding how property is divided, 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 made the debt. You could still be entitled to property even if you earn little or no income.

See property and financial agreements and protecting your property.

Property included in a settlement

A property settlement may include:

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

Property includes assets (where something is owned) and liabilities (where money is owed) that are owned individually, with another person, or by a family trust or family company.

How the court decides who gets what?

There is a 4-step process under the Family Law Act.

Step 1

Identify and value all property from the relationship or marriage (including debts). This can include things you got before or after you were together.

Step 2

Take into account what each person has given to the relationship (contributions) including:

  • earnings
  • savings
  • gifts
  • inheritances
  • property owned before the relationship
  • improvements to property
  • contributions as a homemaker 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 relationship length.

The law looks at all of these things when deciding what a fair division of property is. It doesn’t look at who left the relationship.

Step 4

The court will decide exactly how the property is to be divided. It will make sure the property division is fair and reasonable in all circumstances.

How to get legal advice

We can’t:

  • tell you how much property you may receive in a settlement
  • draft, sign or witness any documents.

We may give legal advice on property and financial agreements.

Contact us

Other places to get legal advice:

Who else can help?

Related information

Disclaimer: This content is for general purposes only and not legal advice. If you have a legal problem, please contact us or speak to a lawyer. View our full disclaimer.

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