When people separate, they usually need to sort out how to divide their assets (property) and debts. There are various ways this can be done:

  • you and your former spouse or de facto partner can agree on how your property should be divided without any court involvement
  • if you agree on arrangements, you can seek to formalise your agreement by applying for consent orders in the Family Court, or
  • if you agree on arrangements, you can seek to formalise your agreement by applying for consent orders in the Family Court, or
  • if you cannot reach an agreement, you can apply to a court for financial orders, including orders relating to the division of property and payment of spouse or de facto partner maintenance.
  • if you cannot reach an agreement, you can apply to a court for financial orders, including orders relating to the division of property and payment of spouse or de facto partner maintenance.

Can I apply to the Family Court or Federal Circuit Court to have my de facto property and money dispute determined?

The Family Court and the Federal Circuit Court can make orders in relation to financial matters following the breakdown of eligible de facto relationships. Previously these courts would generally only make such orders in cases where the parties were married (except in the ACT and NT). Financial disputes between former de facto partners were generally dealt with by state and territory courts, applying the law applicable in that state or territory.

For more information, see the de facto relationships section of this website.

For more information, see the de facto relationships section of this website.

Should superannuation be included in these orders?

The superannuation splitting law treats superannuation as a different type of property. It lets separating couples value their superannuation and split superannuation payments, although this is not mandatory. For more information, see the superannuation section and the Family Law and Superannuation fact sheet.

The superannuation splitting law treats superannuation as a different type of property. It lets separating couples value their superannuation and split superannuation payments, although this is not mandatory. For more information, see the superannuation section and the Family Law and Superannuation fact sheet.

How does a court decide how to divide assets and debts?

There is no formula used to divide your property. No one can tell you exactly what orders a judicial officer will make. The decision is made after all the evidence is heard and the judicial officer decides what is just and equitable based on the unique facts of your case.

The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage (see Sections 79(4) and 75(2)) or a de facto relationship (see Sections 90SM(4) and 90SF(3)). The general principles are the same, regardless of whether the parties were in a marriage or a de facto relationship, and are based on:

  • working out what you've got and what you owe, that is your assets and debts and what they are worth
  • looking at the direct financial contributions by each party to the marriage or de facto relationship such as wage and salary earnings
  • looking at indirect financial contributions by each party such as gifts and inheritances from families
  • looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
  • future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn.

The way your assets and debts will be shared between you will depend on the individual circumstances of your family. Your settlement will probably be different from others you may have heard about.

Is there a time limit for applications for property adjustment?

If you were married, applications for property adjustment must be made within 12 months of your divorce becoming final.

If you were in a de facto relationship, your applications for property adjustment must be made within 2 years of the breakdown of your de facto relationship.

If you do not apply within these time limits, you will need special permission of a court. This is not always granted.