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.
Does it matter if we weren’t married?
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.
Reaching an agreement
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.
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.
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.
amica is a secure online service that helps separating couples to:
- make parenting arrangements if they have children
- divide their money and property simply.
amica 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, this can potentially cut your legal costs and save you money.
amica guides you through a step-by-step process, and offers you information and support along the way to help you reach an agreement.
amica was developed by National Legal Aid and Legal Aid commissions including Legal Aid Queensland, with funding from the Commonwealth Attorney-General’s Department.
Find out more at amica.gov.au
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
- insurance policies
- 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 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:
- property owned before the relationship
- improvements to property
- contributions as a homemaker and parent.
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.
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.
Do I need legal advice?
You may need 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.
Get legal advice
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.
Family Relationship Advice Line gives information about the family law system in Australia.
Who else can help?
These organisations may be able to help. They don’t provide legal advice.
Family Relationship Centres give information, referrals, dispute resolution and advice on parenting after separation.
Federal Circuit and Family Court of Australia looks after matters including family law, child support and divorce. Court forms and information on family court processes are available online, including the pre-action procedures for financial cases guide.