Making decisions about property
How can I make an agreement to divide property after separation?
Before you can start a case for property orders, you normally need to have made a real effort to reach an agreement with your former partner. This can involve direct negotiation with the other person (perhaps with help from a lawyer), or participating in mediation or conciliation.
The family law does not say you have to use a particular style of dispute resolution before you can start a case for property orders. Using a Family Dispute Resolution service is one way to show you have tried to reach an agreement about property issues, but it is not the only thing you can do.
What if we can sort things out on our own?
It is a good idea to make a written agreement. Some banks and other organisations (such as Landgate or superannuation funds) might ask for a formal court order before they can transfer or divide property. You and your former partner can make your agreement legally binding and enforceable by both signing an application for consent orders from the Family Court. If the court thinks that the agreement is fair, it will make property orders that reflect your agreement.
You should get legal advice before signing a written agreement or applying for consent orders to divide property.
Do I have to do anything before I start a property case in the Family Court?
In most cases, you need to take certain steps, called pre-action procedures, before you can start a property case in the Family Court. These are written down in Schedule 1 of the Family Law Rules 2004 (Cth). Before you can file an application for property orders you must:
- make a genuine effort to resolve the dispute by participating in dispute resolution (such as negotiation, mediation, conciliation)
- invite the other person to participate in dispute resolution with a particular service
- make full and frank disclosure of relevant information (both people must give disclosure).
If you are unable to reach an agreement, or the other person refuses to participate in dispute resolution, you need to write to the other person to:
- tell them you intend to start a property case in the Family Court
- set out the issues that are in dispute
- state what orders or outcome you want from the court
- make a genuine offer to settle the dispute, and
- give the other person at least 2 weeks for them to respond to your offer.
There can be serious consequences if you don’t follow the pre-action procedures. This might include not being able to continue with your case until you follow the procedures, or having to pay some or all of the other person's legal costs.
Are there exemptions to the pre-action procedures?
You are expected to follow the pre-action procedures, unless there is a good reason for why it is not possible or appropriate to do so. This could include cases:
- where the matter is urgent
- involving allegations or a risk of family violence
- involving allegations of fraud
- that are approaching a time limit to start a property case
- where giving notice that you intend to start a property case would cause unfair damage to your situation.
Full and frank disclosure means you need to give the other person all the relevant information and documents about the issues in dispute for your case. You must do this all the way through the process: from when you start the pre-action procedures, right up until the court makes a decision.
In property cases, you need to provide information about your earnings, property, trusts and liabilities (debts). You may need to give the other person copies of tax returns, payslips, bank and superannuation statements, and other documents that show your financial position.
Once you have separated, there are time limits that apply to applications for property orders, including consent orders.
- For de facto couples, you cannot start a property case more than 2 years after your de facto relationship ended.
- For married couples, you cannot start a case for property orders if it has been more than 12 months since the court granted a divorce order. The court cannot grant a divorce until you have been separated for at least 12 months after your relationship ended.
If you want to start a property case after the time limit expires, you will need to seek special permission from the court. That is usually only given if you can show you would suffer financial hardship if you were not allowed to apply for property orders.