Agreement about dividing property

Who this applies to

Information on this page applies to married couples who have separated, divorced or had their marriage annulled, and to de facto couples who separated after 1 March 2009. If you’re not married and you separated before this date, get legal advice.

If you agree how to divide property

If you and your ex-partner agree about how your property will be divided, you can:

• make an informal agreement
• make a financial agreement
• get a consent order approved by the court.

Informal agreements

An informal agreement can be written or spoken. Informal agreements are not recommended as they are not enforceable by a court. This means either partner can ask for another settlement or seek maintenance in the future.

You can make your agreement legally enforceable by making a financial agreement or having a consent order made by the court.

Financial agreements

You can make a financial agreement about your property before, during or at the end of a relationship. This is a written document that states how you want your property to be divided if you separate. It does not have to be approved by the court.

There are strict requirements before a financial agreement can be considered legally enforceable. Both people must sign it. It must also contain a statement that each person has received independent legal advice about:

• how the agreement will affect their rights
• whether or not the agreement is in their best interests.

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

Financial agreements can cover:

• how your property is divided
• ongoing financial maintenance
• other related issues.

If you have a financial agreement, you can divide your property according to the agreement. You do not need to go to court.

Changing or cancelling financial agreements

To cancel or change a financial agreement both parties have to:

• get another document from their lawyer to show that legal advice has been given
• sign another written agreement, called a Termination Agreement.

Financial agreements are legally enforceable by the courts unless you can prove that:

• there was a fraud (dishonesty)
• the agreement is not practical to carry out (not just inconvenient)
• there is a major change in the care and welfare of your child or children that was unforeseen at the time of signing the agreement
• the other person has acted in an ‘unconscionable’ (unethical or unfair) way
• the other person has failed to comply with an obligation under the agreement
• the property is confiscated (seized) by the government because it was gained through criminal activity.

If you disagree about how to divide property

In most cases, the law says that you should try to resolve disputes before you go to court. If you can’t agree about how your property is divided, there are family dispute resolution services that can help you.

If you still can't agree, you can apply to the court for a financial order if:

• you are separated or divorced from the person you married
• you are separated from a de facto partner after 1 March 2009
• your marriage has been annulled.

If you were in a de facto relationship and separated before 1 March 2009 get legal advice.

Other support

Find out how you can other support for relationships.