To protect your property you should keep track of all assets and debts until financial arrangements are complete.
If you think your ex-partner will sell, transfer, give away or has already got rid of property you may have a right to, then take action immediately.
You can protect your property by getting a court order (injunction) to stop property being sold or money being spent.
You may need to get urgent legal advice.
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.
How to protect your property
Protect your property by keeping track of all assets and debts until financial arrangements are complete. You may want to take photos or keep other records.
It may be possible to have a ‘caveat’ placed on a property title. This is a warning to other people that you have an interest in the property. The rules for caveats are different in each state and territory, so get legal advice.
If you think your ex-partner will sell, transfer, give away or has already got rid of property you may have a right to, take action immediately. You may be able to get a court order (injunction) to stop property being sold or money being spent. Act quickly and get legal advice.
If your property was sold, you may be able to get an order 'freezing' the sale money. Freezing means the sale money can’t be withdrawn or used by anyone. Bank accounts and other cash resources may also be frozen in other situations.
Court orders about third parties
The courts can make orders and injunctions that affect third parties. A third party is anyone who is not part of a marriage and can include organisations. For example, a court could make an order to stop a bank from selling a house or transfer responsibility for a debt from one partner to the other. The third party must have been told about the application before this can happen.
The Family Law Rules identify a third party must be included in an application and served (given) all the documents relating to the case—even when the other two parties agree to the orders. The third party can then agree or disagree with the application and be involved in the case.
The family law courts can hear bankruptcy proceedings at the same time as a family law property or spousal maintenance case. This applies whether a person is bankrupt at the start or becomes bankrupt during the case.
You must tell the court and each person involved in your family law or spousal maintenance property case if you are bankrupt or in a personal insolvency agreement (or if either of these things happens during your case).
If property or spousal maintenance is being decided and there is bankruptcy, the court will also include the bankruptcy trustee in the case. This happens when the court is satisfied bankruptcy creditors will be affected by property or spousal maintenance orders being made. The competing rights of the creditors and the non-bankrupt spouse will be decided by the court.
This is a complex area of law, so get legal advice before signing any agreements or if you are in any of these situations.
Acknowledgement—prepared using fact sheets which are copyright to the Commonwealth of Australia and National Legal Aid.
Do I need legal advice?
You may need legal advice if:
- you think your ex-partner will sell, transfer, give away, or has already got rid of property you may have a right to
- you or your ex-partner are bankrupt or in a personal insolvency agreement
- you are considering signing any kind of agreement about your property.
Get legal advice
We may provide legal advice on protecting your property. We can’t tell you how much property you will receive in a settlement or draft, sign or witness any documents, but we may explain the process of how to reach a property settlement.
The following organisations may also 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 also 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 deals with family law matters including child support and divorce. Court forms and information about court processes are available online.