Property settlement
If your relationship has ended, you might be thinking about how money and property will be divided.
This is called property settlement.
It can include your home, savings, debts and superannuation.
What is property settlement
Property settlement is how money and property are divided after a relationship ends.
This can include:
- the family home
- savings and bank accounts
- debts (like loans or credit cards)
- superannuation
- cars, furniture and other belongings
- property you owned before the relationship
It applies to people who were married, or in a de facto relationship.
Property settlement usually happens after separation.
You can sort it out before you separate or divorce, or after.
There are time limits, so it’s a good idea to get legal advice early if you can.
How is property divided
Your property settlement will depend on your situation.
To work out what is a fair split, the law looks at:
- What each person contributed during the relationship. For example, income, savings, home improvements. Unpaid work like caring for children, supporting another person and managing the home is recognised as a contribution.
- What each person needs in the future. For example, caring responsibilities, health, or income.
- If family violence has impacted someone's capacity to contribute or their future needs.
Every situation is different. What feels fair can also depend on your safety, housing and financial stability. This is why it is best to get legal advice.
If you are experiencing family violence
Property settlement can be more complex if there is family violence.
Your safety matters. You can get legal advice and support that takes your situation into account.
You don’t have to navigate this on your own.
If you don’t have enough income to cover your living expenses, you may be able to get spousal maintenance.
Spousal maintenance is when one person provides financial support to their former partner after separation, so they can meet their basic needs.
This support can help with things like day‑to‑day living costs and bills.
If you have to leave your home, you do not lose it
If you leave the family home, you will not lose your rights to the house or your things.
Who keeps the family home depends on your total asset pool, the contributions you have both made and your future needs.
You need to consider who can continue to pay the mortgage, whether one of you can pay out the other, and if you have children, where they will live most of the time.
Sometimes the family home will have to be sold so that each partner gets their share of the property.
Property settlement and court
Most people do not go to court.
Many people reach a property settlement together or get legal help to work out an agreement.
Court is usually a last step if an agreement can’t be reached or it’s not safe to negotiate.
When to get a property settlement
Property settlement applies to both married and de facto relationships.
The same general principles are used to decide how money and property are divided.
However, there are some differences in timing:
- If you were married, you usually need to finalise property settlement within 12 months of your divorce becoming final.
- If you were in a de facto relationship, you usually have 2 years from the date of separation.
You don't have to wait until you have separated or divorced to start working out a property settlement.
If you are not sure which applies to you, you can still get help.
What to do if you are worried your partner or ex will get rid of your property
You may be able to get a court order to stop your partner using bank accounts or selling property.
This is called an injunction or freezing order.
If a court order is made, then the other person is required to do (or stop) whatever is stated in that order.
Refusing to comply with a court order can carry serious consequences, such as fines or imprisonment.
You should get legal advice as soon as possible if you are concerned about your partner using joint funds, selling off property, or entering into further debt.
Protecting your financial position before separating
If it is safe to do so, it is useful to collect documents about you and your partner’s finances and property.
If you are planning to leave the home, get copies of statements that show bank account numbers, superannuation amounts, and membership numbers for both you and your partner.
You may also want to direct your salary and any government benefits into a bank account in your sole name and change the nominated beneficiary of any superannuation policy you have.
If possible, try to see a lawyer before you separate to get advice about your circumstances.
If it is not safe for you to delay leaving the home, see a lawyer once you have left.
If you see a lawyer, take these with you
- Important dates like when you started to live together, when you married, when your children were born, when you separated.
- What property you had at the start of the relationship.
- When you bought or sold property.
- When you and your partner worked, studied or took maternity leave.
- A list of any property you and your partner own and a rough value of it. Include details of any debts such as money owed on credit cards, a mortgage, or personal loans.
Making a property settlement legally binding
If you and your former partner have reached an agreement about property, you can ask the Federal Circuit and Family Court of Australia to formalise the agreement and make court orders.
You will need to tell the court:
- what each person will receive
- details about your finances, including assets and debts
The court will check that the agreement is fair and make sure:
- each person has had independent legal advice (this means different lawyers)
- you have both shared information about your finances
If the Court approves your agreement, it becomes final and legally binding.
The court has a do-it-yourself kit to apply for the court orders.
Before you sign your documents, you should both get independent legal advice about whether it is a fair agreement.