Dividing your property fairly

There are laws about how property should be divided when a relationship breaks down.

The Family Law Act (1975) sets out what the Court will consider when determining how property should be divided.

Property includes assets (where something is owned) and liabilities (where money is owed) that are owned individually, with another person or by a family trust or family company.

If you were married, the time limit to commence property proceedings is 12 months from the date on which the divorce order becomes final.

You should get legal advice before dividing your property.

Does it matter if we weren’t married?

If you are a defacto (including same-sex) couple who separated after 1 March 2009, you can apply for a property settlement and/or spousal maintenance under the Family Law Act. If you weren’t married and you separated before this date, get legal advice.

If you were in a defacto relationship, you have 2 years, after separation, to bring an application to the Court for property settlement and/or spousal maintenance.

Reaching an agreement

It’s a good idea to try and come to an agreement about property if possible.

Court proceedings can be very stressful as they are time consuming and expensive.

An agreement can be made into a Court Order (called consent Orders) which people must then follow. Agreements lodged with the Court are more difficult to change (except by agreement). Even if you both agree, the Court will not make an Order unless it’s ‘just and equitable’ (eg fair) to both sides. The aim is to make Orders that are final so you don’t have to come back to Court.

Help with reaching an agreement

You can get a lawyer to help you negotiate with your former partner. Even if you don’t use a lawyer to help with negotiations you should get legal advice before agreeing to and signing any agreement. You should get advice from a lawyer who has not given your ex-partner advice.

If you can’t agree with your former partner, you can apply to the Court for property Orders setting out how the property is to be divided.

You must take steps (pre-action procedures) before you can apply to the Court.

There are family dispute resolution services that can help you come to an agreement. A Family Relationship Centre may be able to help if there are children involved as well as property, but they can’t give you legal advice.

amica

amica is a secure online service that helps separating couples to:

• make parenting arrangements if they have children.
• divide their money and property simply.

amica can help you negotiate and communicate online with your former partner to reach an amicable agreement. If you can agree on a property settlement and parenting arrangements with your former partner, this can potentially cut your legal costs and save you money.

amica guides you through a step-by-step process, and offers you information and support along the way to help you reach an agreement.

amica was developed by National Legal Aid and Legal Aid commissions including Legal Aid Queensland, with funding from the Commonwealth Attorney-General’s Department.

Find out more at amica.gov.au

What property am I entitled to?

There are many factors that must be considered when deciding how property is divided, especially if children need support. It may not matter whose name is on the document (such as a home title) or who bought an item or made the debt. You could still be entitled to property even if you earn little or no income.

Property included in a settlement

A property settlement may include:

• real estate, including the family home.
• money held as cash or in bank accounts.
• investments.
• insurance policies.
• inheritances.
• shares.
• superannuation.
• assets including cars, furniture, jewellery.
• debts including mortgages, loans, credit cards and personal debts.

Property includes assets (where something is owned) and liabilities (where money is owed) that are owned individually, with another person, or by a family trust or family company.

How the Court decides who gets what?

There is a four-step process under the Family Law Act.

Step 1

Identify and value all property from the relationship or marriage (including debts). This can include things you got before or after the marriage. This is an Assets and Liabilities list.

Step 2

Take into account what each person has given to the relationship (contributions) including:

• earnings.
• savings.
• gifts.
• inheritances.
• property owned before the relationship.
• improvements to property.
• contributions as a homemaker and parent.

Step 3

Consider the other factors set out in the law, including:

• how much money each person could earn in the future.
• age and health of each person.
• care and financial support of children.
• responsibility for looking after other people.
• the length of the relationship.
• future needs of each party

The law looks at all of these things when deciding what a fair division of property is. It doesn’t look at who left the relationship, or who was ‘at fault’.

Step 4

The Court will decide exactly how the property is to be divided. It will make sure the property division is fair and reasonable in all the circumstances.

Disclaimer: The material presented on this website is an information source only. The information on this website is written for people resident in, or affected by the laws of Queensland, Australia only. Links to other sites from this website are provided for the users’ convenience. The LGBTI Legal Service does not endorse these sites and is not responsible for the information on these sites or the use made of this information. If you have a specific legal problem, you should consult a professional legal advisor.