How does the Family Court decide who should get what?

Firstly, the court looks at what property of the marriage there is. This can be property owned by yourself, your former partner or even another person. Examples of property are houses, blocks of land, businesses, motor vehicles, shares, savings, furniture and other items such as pots and pans (sometimes called "chattels").

Secondly, the court looks at what contributions each of you made during your relationship. Contributions may be financial (such as wages, inheritance or previous savings) or may be non-financial (such as looking after children and housework). When the contributions have been worked out the court will be able to divide the property on a percentage basis and this is done on a case by case basis.

Thirdly, the court looks at what the future needs of the parties are. This includes things such as whether both of you work, whether there are children involved and who is looking after them, how long the relationship was and your health and ability to work. After looking at your future needs the court may decide to make changes to the division of property based on each person's future needs.

Lastly, the court will consider whether the final division of property is just and equitable to the parties given their particular circumstances.

Is superannuation included in property?

Superannuation may be included in a property settlement for people who were married. You may ask for superannuation to be:

• split and transferred to the other person (called a "splitting order"),
• given to the other person when you retire and get your superannuation payment (called a "flagging order"),
• used as an "offset" meaning if one person keeps their superannuation the other person will get more other property,
• included in a financial agreement,
• valued as property.

Do we have to try and reach an agreement?

You should try to reach an agreement with your former partner about financial issues. You could attempt property settlement through Family dispute resolution, arbitration or other non-court based methods. This might resolve the matter without the need to go to court. You should seek legal advice about your particular circumstances prior to signing any final agreement.

What is arbitration?

Arbitration is one form of dispute resolution and is sometimes an option used to resolve property settlement disputes. Arbitration is a process (not a court process) where the parties in dispute present their arguments and evidence to an arbitrator, who makes a decision to resolve their dispute. Arbitrators may charge fees for their services.

Sometimes when proceedings are already in court, if all the parties agree, the court can refer the proceedings to arbitration. If an arbitration award is made, it can be registered in the court and takes effect as if it were a court order.

I am worried my former partner will get rid of assets, what can I do?

If you are worried your former partner may get rid of assets before you can get a property settlement you can ask the court for an injunction to stop the other person from selling or dealing with the property.

An injunction is an order from the court preventing anyone from selling or transferring assets that may be property of a marriage.

Are there any time limits?

Yes. If you were married you have 12 months from the date your divorce becomes final. You can get a property settlement before getting your divorce.

Although you can work out a property settlement almost any time after separation (as the time limitation period does not start until your divorce is finalised), it is recommended to sort out arrangements as soon as possible. This is because asset values can change over time and valuations are best done close to when the parties separate.

What is a financial agreement?

A financial agreement is like a contract between the parties that can deal with how property will be divided if a relationship breaks down. Financial agreements may also allow for spousal maintenance to be paid if a relationship ends. Financial agreements can be made before, during or after a marriage or de facto relationship. Financial agreements can only be set aside in very limited circumstances. If you are thinking about making a financial agreement you should seek legal advice.

Can I get spousal maintenance?

Spousal maintenance is only given if one person can financially maintain the other person and the other person cannot maintain themselves because of age, mental or physical incapacity, because of a child under 18 in their care or any other adequate reason. The court will consider a range of things when deciding on whether to grant spousal maintenance. You should seek legal advice if you want to apply for spousal maintenance.

Last reviewed: 01/09/2010