Property Division- More Info
How will the courts decide how our property should be divided?
When deciding how your property will be fairly and justly divided, the Family Court will consider:
What each of you owned before the relationship. How important this is will depend on both the length of the relationship and the contributions each person made to the upkeep and improvement of any assets brought into the relationship.
The net value of your current assets – this includes the value of any property such as houses, shares, boats, caravans or superannuation.
Contributions made by each person during the relationship. This includes direct financial contributions (for example wages, or payments for properties or improvements to properties); indirect financial contributions (for example gifts, inheritances from family or payment of household expenses); non-financial contributions (such as do-it-yourself renovations and contributions to the welfare of the family, caring for children or housework).
Your future needs, including considerations such as who will have the care of any children, the earning potential of each party, and any financial resources available to either of you (for example any assets you might have obtained after the relationship has ended, or the financial support and assistance you receive from a new partner).
Once the Court has decided what proportion of the assets should be given to each party, it can make orders about how this happens. For example the Court may order:
that assets like the family home be sold and divided;
that the ownership of assets be transferred into one person’s name;
that ongoing maintenance be paid by one party to another (please note that this is an unusual order); and/or
that superannuation funds be split.
What if I make an agreement with my ex-partner?
Many couples are able to come to an agreement about how their assets are to be divided without needing to ask the Court to decide. If you are able to do this, it is a good idea to ask a Family Court to approve that agreement. This process is called obtaining a Consent Order.
This will mean that neither you nor your ex-partner can change your mind at a later date and ask for more of the assets. Consent Orders also have the advantage that you are exempted from paying stamp duty if property is transferred between you.
It is also possible to make “binding financial agreements”: both partners must receive independent legal advice, and the agreement must comply with certain formal requirements in order to be binding.
It is an easier legal test to overturn a binding financial agreement than to overturn a Consent Order.
Do the laws affect my superannuation?
Superannuation held by a party can be split by agreement or by court order. This is the same for married couples or de facto couples.
Disclaimer: This information is a general guide to the law. It should not be relied on as legal advice. If you have a specific legal problem you should consult a lawyer.
It applies to people who live in, or are affected by, the law as it applies in NSW, Australia. The information contained in this publication is current at 1 January 2014.