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There are laws about how property should be divided when a relationship breaks down.
The Family Law Act sets out what the court will consider when determining how property should be divided.
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.
You should get legal advice before dividing your property.
If you are a defacto (including same-sex) couple who separated after 1 March 2009, you can apply for a property settlement and/or spousal maintenance under the Family Law Act. If you weren’t married and you separated before this date, get legal advice.
It’s a good idea to try and 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 you both agree, the court will not make an order unless it’s ‘just and equitable’ (eg fair) to both sides. The aim is to make orders that are final so you don’t have to come back to court.
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.
There are family dispute resolution services that can help you come to an agreement. A Family Relationship Centre may be able to help if there are children involved as well as property, but they can’t give you legal advice.
A financial counsellor can help you with any financial difficulties.
See who else can help more details.
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.
A property settlement may include:
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.
There is a four-step process under the Family Law Act.
Identify and value all property from the relationship or marriage (including debts). This can include things you got before or after the marriage.
Take into account what each person has given to the relationship (contributions) including:
Consider the other factors set out in the law, including:
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.
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.
You may need legal advice if:
We may give legal advice on property and financial agreements. We can’t tell you how much property you may receive in a settlement, or draft, sign or witness any documents, but we may be able to explain the process of how to reach a property settlement.
The following organisations may be able to give legal advice.
Community legal centres give legal advice on a range of topics. Contact them to find out if they can help.
Queensland Law Society can refer you to a specialist private lawyer for advice or representation.
These organisations may be able to help. They don’t provide legal advice.
Family Relationship Advice Line gives information about the family law system in Australia.
Family Relationship Centres give information, referrals, dispute resolution and advice on parenting after separation.
Family Court of Australia deals with family law cases. Court forms and information on family court processes are available online, including the pre-action procedures for financial cases guide.
Federal Circuit Court— looks after matters including family law, child support and divorce. Court forms and information about court processes are available online.