Property and money after marriage breakdown
When people separate, they usually need to sort out how to divide their assets (property) and debts. There are various ways this can be done:
- you and your former spouse can agree on how your property should be divided without any court involvement
- you can seek to formalise your agreement by applying for consent orders in the Family Court, or
- if you cannot reach agreement, you can apply to a court for financial orders.
De facto relationships
This information about financial orders applies primarily to people who have been married. Property disputes between people who were not married (that is, in de facto relationships) must be dealt with by state courts, applying the laws of the relevant state or territory.
The exceptions to this are:
- in the Australian Capital Territory and Northern Territory, where the Family Court (but not the Federal Magistrates Court) can deal with property disputes between partners in de facto relationships at the same time as hearing disputes about children, and
- if you live in Western Australia the law is also different. For more information visit the Family Court of Western Australia's website located under website links.
How does a court decide?
Sections 79(4), and 75(2) of the Family Law Act 1975 set out the general principles a court considers when deciding financial disputes after marriage breakdown. These principles are based on:
- working out what you've got and what you owe, that is your assets and debts and what they are worth
- looking at the direct financial contributions to the marriage such as wage and salary earnings
- looking at indirect financial contributions such as gifts and inheritance from families
- looking at the non-financial contributions to the marriage such as caring for children and homemaking,
- future requirements – a court will take into account things like age, health, financial resources, care of children and ability to earn.
It is important to realise that the way your assets and debts will be shared between you will depend on the individual circumstances of your family. Your settlement will probably be different from others you may have heard about.
A court's discretion (judgment)
There is no formula used to divide your property. No one can tell you exactly what orders a judicial officer will make. The decision is made after all the evidence is heard and the judicial officer decides what is just and equitable based on the unique facts of your case.