Dividing property after separation.
Time limits, the options for a formal agreement, and how the court decides what is fair.
After separation, property, debts and superannuation need to be dealt with.
This can be done by agreement or by the court.
There is no set formula.
The law sets out the matters the court must consider.
Time limits you must know
- Married couples. Apply within 12 months after the divorce becomes final.
- De facto couples. Apply within 2 years after the relationship broke down.
- After these dates, the court's permission is needed, and the court says it is not always granted.
- You do not need to wait for the divorce. You can apply for financial orders before it is final.
If you were in a de facto relationship
The court must be satisfied the relationship was genuine and has broken down.
At least one of these must also apply: the relationship lasted at least two years, there is a child of the relationship, the relationship was registered under a state or territory law, or one party made significant contributions and serious injustice would result without an order.
There must also be a geographical connection to a participating state or territory.
Consent orders or a financial agreement
If you agree, there are two ways to make the agreement formal.
- Consent orders. You apply to the court to make your agreement into court orders. You do not need to attend court unless a Registrar asks. The court can only make the orders if they are just and equitable. Each party must disclose their full financial circumstances.
- A financial agreement. A contract made under the Family Law Act. Each party must receive independent legal advice before signing. If binding, it removes the matter from the court, subject to the court's power to set it aside in some cases.
Consent orders are court orders. A financial agreement is a contract that binds only if it meets the legal requirements.
Steps before an application is filed
The court rules set out pre-action procedures.
- Invite the other party to dispute resolution, such as negotiation, conciliation or arbitration.
- Make a genuine effort to resolve the dispute.
- If that does not resolve it, send a written notice of intention. It sets out the issues, the orders you would seek and a genuine offer. It gives at least 14 days to reply.
- The other party replies in writing, accepting the offer or making a counter-offer.
- Each party exchanges relevant documents. The duty of disclosure applies while you prepare.
Exemptions can apply, for example where there is family violence or a risk of it, or the matter is urgent.
The matters the court considers
The court must not make an order unless it is just and equitable to do so.
Since 10 June 2025, the approach the court takes is set out in the Family Law Act. In plain words:
- Identify what each party owns and owes, together and separately.
- Consider the contributions each party made. This includes money, work on property, and care of the home and children.
- Consider each party's current and future circumstances. This includes age, health, income, care of children and the need to house them, and the length of the relationship.
- Decide whether the result is just and equitable, and which property goes to whom.
The court can consider the effect of family violence on a party's contributions and on their current and future circumstances. Economic or financial abuse is included in the meaning of family violence.
The court can also consider wastage of property caused intentionally or recklessly, and the nature of any debts.
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Superannuation
Superannuation can be valued and split between the parties. Splitting is not compulsory.
It must be done when you formalise your financial arrangements, by consent orders, a financial agreement or court orders.
A split does not turn super into cash. It stays subject to superannuation laws, usually until retirement age.
For consent orders, the super fund trustee must receive written notice at least 28 days before filing.
Where people get caught
Missing the time limit
Twelve months after a divorce, or two years after a de facto relationship ends, goes quickly. After that, the court's permission is needed.
Relying on an informal deal
Only consent orders, court orders or a binding financial agreement formalise the division. An informal arrangement does not have the same legal effect.
Leaving superannuation out
The court says a super split must be done when you formalise your financial arrangements. Deal with it at that time.
Incomplete disclosure
Each party must disclose their full financial circumstances. For financial agreements, non-disclosure of a material matter is one ground on which the court can set the agreement aside.
Moving or spending property after separation
The court can take into account wastage caused intentionally or recklessly.
Common questions
Is property always split 50:50?
No. There is no set formula. The court looks at the matters set out in the Family Law Act and decides what is just and equitable in each case.
Can we settle property before the divorce?
Yes. You can apply for financial orders before the divorce is final.
Do we have to go to court to formalise our agreement?
No. You can apply for consent orders without attending court unless a Registrar asks you to, or make a financial agreement.
What if my former partner will not engage?
The pre-action procedures provide for a written notice of intention. If there is no response, other steps, including filing an application, may follow.
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