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Property and financial agreements

If you and your ex-partner agree about how to divide your property when you separate, you can:

  • make an informal agreement
  • apply to the court for consent orders
  • make a financial agreement.

Consent orders and financial agreements are legally binding. You should get legal advice.

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.

Agreeing on a property settlement

It’s a good idea to try and reach an agreement about how to divide your property without going to court. If you can’t agree there are family dispute resolution services that can help.

Time limits

There are time limits to apply for consent or financial orders. You must apply:

  • within 1 year from the date your divorce order has taken effect
  • within 2 years from the date your defacto relationship ended.

You can only apply to the court for a property settlement after this time in special circumstances. Get legal advice.

Informal agreements

You can have a written or unwritten informal agreement about how you will divide your property, but this isn’t recommended as it’s not legally binding (enforceable) by a court. You can make an agreement legally binding by having the court make it into consent orders, or by making a financial agreement following certain rules.  

Consent orders

Consent orders are an agreement between ex-partners that is approved by the court and then made into a court order. Consent orders for property disputes have the same legal effect as any other court order.

You must show the court the agreement is fair before it will make consent orders. The Family Law Act sets out how fairness is decided.

When making consent orders in property disputes the court aims to make sure they are final, so there’ll be no need to come back to court at a later date. To cancel consent orders in property disputes, you must prove:

  • there was fraud (dishonesty)
  • the orders are impractical to carry out (not just inconvenient)
  • there are exceptional circumstances relating to the children’s care, welfare and development.

Consent orders or legally binding agreements are very difficult to change after they have been made. Get legal advice before signing consent orders or entering into a property agreement.

Financial agreements

The law allows married or defacto couples to make legally binding (enforceable) financial agreements about their property. These agreements can be made before, during or at the end of a relationship. Financial agreements made before a marriage are often called ‘pre-nuptial agreements’.

In a relationship breakdown or separation, financial agreements can cover:

  • the maintenance of one or both people in the relationship
  • how assets and money are divided
  • other issues.

Certain conditions must be met before your financial agreement will be legally binding (enforceable). Both people must sign it and it must contain a statement saying each person has received independent legal advice covering:

  • how the agreement will affect their rights
  • whether or not the agreement is to their advantage.

Each person’s lawyer must provide a signed document saying independent advice was given.

To cancel or change financial agreements, you must prove:

  • there was a fraud (dishonesty)
  • the agreement is not practical to carry out (not just inconvenient)
  • there is a major change in the children’s care and welfare
  • the other person acted in an unconscionable (unethical or unfair) way.

We can’t provide legal advice or help with drafting financial agreements. You will need to get private legal advice.

Do I need legal advice?

You may need legal advice if you:

  • are considering signing a financial agreement or consent orders
  • need to change an existing financial agreement or consent 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.

Who else can help?

These organisations may also 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 deal with family law cases. Court forms and information on family court processes are available online.

Federal Circuit Court looks after matters including family law, child support and divorce. Court forms and information about court processes are available online.

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