Dividing Property and Finances After Separation

How can we sort out how to divide our assets and debts?

Some ways that property can be divided include:

agreeing to divide property with your former partner without the Court’s involvement (we do not recommend this as there is a risk down the track that your former partner may renege on any informal agreement reached)

applying for Consent Orders in the Family Court if you and your former spouse reach an agreement

applying to the Court for financial orders including division of property and spouse/de facto maintenance if you and your former spouse cannot come to an agreement.

I’m in a de facto relationship – can I apply to the Family Law Courts for orders regarding property?

Yes. Both the Family Court and Federal Circuit Court can make orders in relation to financial matters after the break down of a de facto relationship.

Will my superannuation be included in property orders?

Yes. Superannuation is treated by the law as a different type of property. Courts are therefore able to make orders that provide for a split of superannuation benefits.

How does the Court work out who gets what?

Determining who gets what is not a precise mathematical exercise. The Court decides what is just and equitable based on the unique facts of your case.

However, there are some general principles that the Courts apply when determining a just and equitable division of property between parties which are:

identifying the property pool – including assets, liabilities, financial resources and superannuation

identifying the direct financial contributions each of the parties have made to the marriage or de facto relationship

identifying indirect financial contributions by each of the parties such as gifts and inheritances from family members

identifying non-financial contributions such as parenting and homemaking

identifying any future needs of either party taking into account things such as age, health, financial resources, care of children and earning income capacity.

Are there time limits for making an application to the Court?

Limitation periods apply to both marriages and de facto relationships.

If you were married, you must make an application for division of property within 12 months of your Divorce Order being made.

If you were in a de facto relationship, you must make an application for division of property within 2 years of the breakdown of your relationship.

If you do not make an application with the above timeframes, you will need to seek the Court’s permission to make the application and the Court does not always grant this.