Following separation, couples (married and de facto) usually wish to become financially independent of each other. If parties cannot agree on how the property and liabilities should be divided, you should seek legal advice from Taits Legal family lawyers to assist you in applying to the Family Court or the Federal Magistrates Court for an order to settle property issues.

Married couples – Applications for property settlements must be made within 12 months from the date of any divorce order. However, the property settlement procedure can start at any time (divorce is not a pre-requisite). 

De facto relationships – Applications for property settlements must be made within 2 years from the date of separation. They must also satisfy the definition of de facto relationship in the Family Law Act 1975.

Each party has entitlement to a split of all assets accumulated throughout the relationship. Assets of the relationship are generally pooled and then divided with consideration given to each party's earning capacity, duration of marriage, care and responsibility of children, future needs and health. This includes both parties super.

If both parties agree on how the property should be divided, you can finalise your arrangements by mutual agreements, binding agreements or consent orders.

Mediation can be an alternative to settle property disputes than a court proceeding or a non-binding agreement, it is also a more cost-efficient and amicable way for separated parties. A mediator helps parties decide what is in dispute and try and explore possible solutions and draw up agreements. Agreements reached in mediation should be legally formalised.



It is important that you both seek independent legal advice on which method is preferable in your circumstances and how to meet the specific requirements for financial agreements and mediation.

If both parties cannot agree on how the property should be divided, you can let the court decide for you. However, we advise the client that this is the last resort. The Court must be satisfied when making orders concerning the division of property that it be just and equitable in the circumstances. The court will consider each party's contributions to the asset pool and the future need of each party. The asset pool is valued as at the time of the final hearing.

The Court will consider the following:

• Contributions made by each party to the asset's purchase, maintenance and improvement over the history of the relationship. This includes for example whether the asset was inherited or was the result of a windfall. Contributions can be financial and non-financial, direct or indirect.
• The effect an order has on the future earning capacity of the parties.
• An assessment of the need of one party to be maintained by the other. The court will consider a person's age, state of health, income-earning capacity, superannuation, financial circumstances relating to cohabitation with another person and which party is looking after the children of the relationship.

The Court may make the following orders when settling property disputes:

• A declaration specifying the particular interests of both parties for the assets of the marriage;
• An order for the property to be sold or for transfer of the registered ownership of property between the parties;
• An order for the sale of particular assets and a distribution of the proceeds;
• An order for the payment of money by one party to the other.

If you wish to proceed with Court proceedings, each party must fully disclose and exchange the following:

1. The 3 most recent individual tax returns;
2. .12 months of bank statements;
3. Superannuation statements;
4. Market valuation of any property;
5. Copies of any trust deeds;
6. Financial statements and tax returns of any company's controlled by any party;
7. Any partnership agreements;
8. Annual company returns of directors and shareholders.

Please contact our office if you wish to make an appointment with one of our family law lawyers. Our view is it is often helpful to sever financial relationships as quickly as possible.