How to divide property and assets, including spousal maintenance and superannuation.

Property and money after separation

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 or de facto partner 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, including orders relating to the division of property and payment of spouse or de facto spouse maintenance.

De facto relationships

The Family Court and the Federal Magistrates Court can now make orders in relation to financial matters following the breakdown of eligible de facto relationships. Previously these courts would generally only make such orders in cases where the parties were married (except in the ACT and NT). Financial disputes between former de facto partners were generally dealt with by state and territory courts, applying the law applicable in that state or territory.

If you have been in a de facto relationship and are considering making an application to the Family Court or Federal Magistrates Court for financial orders, you should read Property division when de facto relationships break down - new Commonwealth law for separating de facto couples. This fact sheet will give you information about whether or not you are eligible to apply to the Family Court or Federal Magistrates Court.

How does a court decide?

The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage (see Sections 79(4) and 75(2)) or a de facto relationship (see Sections 90SM(4) and 90SF(3)). The general principles are the same, regardless of whether the parties were in a marriage or a de facto relationship, and 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 by each party to the marriage or de facto relationship such as wage and salary earnings
• looking at indirect financial contributions by each party such as gifts and inheritances from families
• looking at the non-financial contributions to the marriage or de facto relationship such as caring for children and homemaking, and
• 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.