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When a couple separates, one of the biggest issues is figuring out who gets what in relation to property. 

The Court has a 4 step process to resolve property disputes:

  1. The net value of your property is determined, including superannuation and any debts. 
  2. Financial and non-financial contributions of each party are identified.
  3. The Court considers the parties’ present and future needs.

    The matters that are taken into account are set out in Section 75(2) of the Family Law Act and include (but are not limited to):
    • The age and health of the parties
    • Whether each party has care and control of the children
    • The appropriate standard of living
    • The income and financial resources of each party
    • The duration of the relationship
  4. Court orders are made considering all the above factors.

    The Court must decide if the proposed property division is fair for both parties in order to be just and equitable. 

If you wish to seek advice on property settlement, please contact our office for assistance. 

FAQ

How does the Court divide the property?

There is no set formula or rule that determines how the property will be divided and the Court is not required to split the property 50/50. It will consider many factors and these are often unique in each situation. The Court considers the financial and non-financial contributions either directly or indirectly made by you and your spouse in assessing the appropriate outcome.

Do we have to resolve property matters before we are allowed to apply for a divorce?

Not at all. You can start negotiations about property as soon as the marriage breaks down, but if you are divorced you must start Court proceedings or formalise an agreement within 12 months of your divorce becoming final.

Do I have to wait 12 months before my ex-partner and I can divide our assets after separation?

There is no waiting period after separation to deal with the assets. If there is agreement then the assets can be divided immediately upon reaching an agreement. If no agreement is reached then the parties can commence proceedings at any time after separation but no later than 12 months after the date of the divorce becoming final or 2 years after the date of separation in the case of defacto partners.