If you and your ex-partner agree about how to divide your property when you separate, you can:
- make an informal agreement.
- apply to the Court for consent Orders.
- make a financial agreement.
Consent Orders and financial agreements are legally binding. An informal agreement is not legally binding. This means that either party can apply to the Court in the future for Orders despite your informal agreement (see: Time Limits).
If you were married, the time limit to commence property proceedings is 12 months from the date on which the divorce Order becomes final.
Does it matter if we were not 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 were not 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.
Agreeing on a property settlement
It is a good idea to try and reach an agreement about how to divide your property without going to Court. If you cannot agree there are family dispute resolution services that can help.
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
There are time limits to apply for consent or financial Orders. You must apply:
- within 1 year from the date your divorce Order has taken effect.
- within 2 years from the date your defacto relationship ended.
You can only apply to the Court for a property settlement after this time in special circumstances.
You can have a written or unwritten informal agreement about how you will divide your property, but this is not recommended as it is not legally binding (enforceable) by a Court. You can make an agreement legally binding by having the Court make it into consent Orders, or by making a financial agreement following certain rules.
Consent Orders are an agreement between ex-partners that is approved by the Court and then made into a Court Order. Consent Orders for property disputes have the same legal effect as any other Court Order.
You must show the Court the agreement is fair before it will make consent Orders. The Family Law Act sets out how fairness is decided.
When making consent Orders in property disputes the Court aims to make sure they are final, so there will be no need to come back to Court at a later date. To cancel consent Orders in property disputes, you must prove:
- there was fraud (dishonesty).
- the Orders are impractical to carry out (not just inconvenient).
- there are exceptional circumstances relating to the children’s care, welfare and development.
Consent Orders or legally binding agreements are very difficult to change after they have been made. Get legal advice before signing consent Orders or entering into a property agreement.
The law allows married or defacto couples to make legally binding (enforceable) financial agreements about their property. These agreements can be made before, during or at the end of a relationship. Financial agreements made before a marriage are often called ‘pre-nuptial agreements’.
In a relationship breakdown or separation, financial agreements can cover:
- the maintenance of one or both people in the relationship.
- how assets and money are divided.
- other issues.
Certain conditions must be met before your financial agreement will be legally binding (enforceable). Both people must sign it and it must contain a statement saying each person has received independent legal advice covering:
- how the agreement will affect their rights.
- whether or not the agreement is to their advantage.
Each person’s lawyer must provide a signed document saying independent advice was given.
To cancel or change financial agreements, you must prove:
- there was a fraud (dishonesty).
- the agreement is not practical to carry out (not just inconvenient).
- there is a major change in the children’s care and welfare.
- the other person acted in an unconscionable (unethical or unfair) way.
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