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Going to court to divide property

If ex-partners cannot agree on how to divide property, the court can make a consent order or a financial order, based on what the law considers to be a fair division of property.

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The court can make consent orders and financial orders.

When making these orders, the court will consider what is a fair division of property. The court does not consider who is ‘at fault’ in a relationship breakdown.

A consent order is an agreement between ex-partners that is approved by the court and then becomes a court order. Consent orders for property disputes have the same legal force as other court orders.

Consent orders can cover:

The court must be convinced that the agreement is fair before it will make a consent order. How fairness is decided is set out in the Commonwealth Family Law Act 1975.

The Federal Circuit and Family Law Court website has an Application for consent orders kit and a supplement showing a sample court order.

One of the court’s aims in making consent orders in property disputes is to ensure they are final and avoid the need for further proceedings. It is very difficult to change orders made in property disputes.

To ‘set aside’ (cancel) consent orders in property disputes you need to prove that:

  • there was ‘fraud’ (dishonesty)
  • the orders are 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 order
  • the property is confiscated (seized) by the government because it was gained through criminal activity.

Financial orders

In a financial order, a court can order a person to:

  • pay money to another person by a certain time
  • transfer or sell property
  • split superannuation
  • sign documents
  • pay maintenance.

When a financial order is made, each person listed in the order must follow it.

If there is no agreement about who gets the family home, the court often orders that it be sold and the sale money divided on a percentage basis. This does not mean that the money will be divided equally. There is no automatic 50/50 split of property. Every case is different.

The court will make financial orders based on what is fair to both people. They will look at contributions made during the relationship and the future needs of both people.

The four-step process

The court applies a four-step process to work out what is fair.

  1. Consider whether it is just and equitable (fair) to divide property.
  2. Identify and value the property to work out how much there is. Property can include things you got before your relationship started or after you separated.
  3. Consider the contributions made by both sides, including financial contributions such as earnings, savings, gifts, inheritances and home improvements, and non-financial contributions such as being a homemaker and care provider for children.
  4. Consider other factors set out by law, including:
    • how much each person could earn in future
    • the age and health of each person
    • the care and financial support of children
    • responsibility for supporting other people
    • length of relationship.

Time limits

There are time limits for going to court for a consent order or a financial order.

You must apply for a court order:

  • within one year from the date of your annulment
  • within one year from the date your divorce order is final
  • within two years from the date your de facto relationship ended.

You can only apply to the court for a property settlement after this time in special circumstances. Get legal advice.

It is very important not to enter into a property agreement without legal advice. Every case is different. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your situation. A lawyer can also help you work out an agreement.

Other support

Find out how you can get other support for relationships.

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