Property Settlement Australia FAQ

There are three main steps that guide the property settlement process. In the first, the court identifies the property that is owned by one or both parties, and then the second step involves determining the value of this property. In the third step, the court decides whether to order either party to transfer property to the other party and, if so, what order would be appropriate. Generally speaking, this final step is guided by an assessment of the parties’ past contributions to their property or to the welfare of the family, and also by each party’s future financial outlook.

A consent order is made by the court and reflects an agreement that has been reached by the parties about how to divide their property. The court can issue consent orders regardless of whether any property proceedings are underway.
However, the parties’ reaching an agreement about dividing assets does not change the fact that the court must consider the division both “appropriate” and “just and equitable” before making any orders. In other words, the court does not “rubber-stamp” orders simply because the parties have agreed to the terms.

The Family Law Act defines a “de facto relationship” as “a relationship as a couple living together on a genuine domestic basis.” This definition does not include married couples or other family members. The existence of a de facto relationship is determined given the totality of circumstances regarding the parties’ relationship.

Remarkably, a person can be regarded as in a de facto relationship even if married to someone else or in a de facto relationship with another person. Accordingly, de facto relationships are not considered exclusive for the purposes of the Family Law Act.

Remarkably, a person can be regarded as in a de facto relationship even if married to someone else or in a de facto relationship with another person. Accordingly, de facto relationships are not considered exclusive for the purposes of the Family Law Act.Can I Get a Property Settlement If I Was in a De Facto Relationship?

Yes, a property settlement can be achieved between parties in a broken-down de facto relationship. However, for this to occur, at least one of the following requirements must be met:

• The relationship lasted for a continuous period, or an aggregate period, of at least two years; or
• There is a child of the de facto relationship; or
• The relationship has been registered under the law of a State or Territory; or
• One party has made substantial contributions to the property or to the welfare of the family, and a failure to obtain a property settlement would result in a serious injustice.

In addition to the general requirements above, a de facto property settlement also requires at least one of the following to be met:

• The parties were ordinarily resident in New South Wales, the Northern Territory, Queensland, South Australia, ACT, Tasmania, or Victoria; or
• At least one of the parties was residednt in any of the above States or Territoryregions when the property settlement wais finalised, and either:
  • The parties were ordinarily resident in any of the above regions for at least one third of their relationship; or
  • One party has made substantial contributions to the property or to the welfare of the family, and a failure to obtain a property settlement would result in a serious injustice.

Once a divorce order has taken effect, there is a 12-month window of time for getting a property settlement. For a de facto relationship that has broken down, the window of time is 2 years.

If you do not get a property settlement within the timeframe that is relevant to your situation, you must obtain the court’s permission to begin the process. Otherwise, you and the other party may agree that the property settlement can proceed after the deadline.

However, the 12-month time limit for divorces does not apply when the divorce order was obtained overseas.

You must show that either you or a child would suffer hardship if the court did not allow you to proceed with your property settlement after the deadline. The court will also consider any explanation you may have for the delay.

The Family Law Act allows parties to a marriage or de facto relationship, as well as parties considering whether to enter into a marriage or de facto relationship, to reach an agreement regarding how their property will be divided if their relationship breaks down. Agreements of this kind are known as “binding financial agreements.”  

A binding financial agreement removes the power of the court to make any orders about the relevant property matters, unless it is specifically set aside by the court or terminated by the parties.