Upon the breakdown of a relationship, you and your former partner will have to negotiate the division of your property, and other financial matters. This can be done between yourselves, or with the assistance of a family lawyer. If you can’t agree, then you may require intervention from the Federal Circuit and Family Court of Australia.
What is Property?
Property can include:
- Real estate, both your principal place of residence and/or investment properties.
- Cars, household contents, furniture, and other personal property.
- Money in banks, building societies, credit unions and other financial institutions.
- Interests in businesses, shares in companies and life insurance policies.
When you Agree
If you and your former partner agree on how to split your assets, it is a good idea to formalise your agreement to make it legally binding. This can be done by way of:
- An Application for Consent Orders; or
- Financial agreement.
This refers to transferring your agreement into a formal legal document, submitting that to the Court and asking the Court to make binding Orders. You are also required to complete a detailed Application alongside your proposed Orders.
The court must be satisfied that the outcome of the agreement is fair on both parties, and if so, will turn the agreement into binding Orders. These Orders can then be enforced.
You can make a financial agreement before your marriage or relationship starts, during the relationship, or after it ends. For a financial agreement to be legally binding, both you and your partner must get independent legal advice and you must both sign the agreement.
Financial agreements can cover:
- financial settlement, including superannuation entitlements
- financial support (maintenance) after a relationship ends.
This is a private agreement that does not involve the Court, which is why there are strict requirements regarding the drafting of the document. If executed correctly, the Financial Agreement has the same affect as a Court Order.
When you can’t agree
If you and your former partner can’t agree on how to split your property, lawyers can help you negotiate an agreement. Before that step, you should consider alternative dispute resolution, such as mediation. If you are still unable to reach an agreement, you might have to start court proceedings and the Court will have to decide for you.
There’s no formula or standard division of property and money. The court will look at the facts of each individual case when making a decision.
It is beneficial for the parties to be able to negotiate an agreement between themselves, without the involvement of the Court. It can be costly and can take time (sometimes longer than 12 months) before you reach a Final Hearing, where a Judge will make their final decision.
Watch our free on-demand webinar on property settlement
If you want to learn more about property settlement with your ex-partner following separation, watch our new, free on-demand webinar "Negotiating Property Settlement" to learn how to negotiate the split of assets from your relationship with your ex-partner following separation.