Making decisions about property
In most cases separated couples are able to reach an agreement about how to divide their property without needing to go to court.
Even if you think you will be able to reach agreement with your ex-partner about property without going to court, it is important to get legal advice about your situation. A lawyer can help you understand your legal rights and responsibilities.
Getting legal advice at an early stage in your property settlement will help when negotiating with your ex-partner. You should also get legal advice before signing documents or transferring property.
If you are able to reach an agreement with your ex-partner, it is a good idea to formalise your agreement by applying to the Family Court for consent orders. This will make your agreement legally binding and enforceable.
- what a property settlement is
- what property can be divided
- who can ask for a property settlement
- different ways you can negotiate
- how to formalise an agreement
- the benefits of applying for consent orders, and
- time limits that apply to starting a property case.
What is a property settlement?
A property settlement sets out how a couple's assets (property people own) and liabilities (debts people owe) will be divided after they separate.
A property settlement can be made by:
- people reaching an agreement about how their property will be divided and applying to the Family Court for consent orders, or
- the Family Court hearing the case and deciding how property will be divided.
Who can ask for a property settlement?
Any person who was married or in a de facto relationship, that has separated from their partner, can ask for a property settlement. The Family Court will look carefully at all the circumstances of the case to decide whether a person is entitled to a property settlement.
In some court cases, a case guardian can be appointed to represent a person who is unable to represent themselves.
If a person dies after a Family Court case about property settlement has started, the executor of their estate can continue the case for the deceased person.
What property can be divided?
Property includes assets and liabilities. All assets and liabilities may be considered when deciding how property will be divided. This includes assets in one person's name or in both names.
Working out what assets and liabilities there are and how much they are worth is one of the first steps of a property settlement. For more information about this step see valuing property
Can superannuation be divided?
In Western Australia, the law about how superannuation is treated if you were in a de facto relationship has recently changed. From 28 September 2022 if you were in a de facto relationship, superannuation can be split (this means divided) as part of a property settlement, in the same way that married couples are able to split their superannuation after separation.
The changes to the law apply to new property cases which are filed in the Family Court of WA on or after 28 September 2022. If you are going through a property settlement it is recommended you seek legal advice about how these changes may impact upon you.
What are some common ways property can be divided?
Some common ways that property can be divided (either by people reaching an agreement or by the court making a decision) are:
- one person makes a cash payment to the other person (this could be paid in a lump sum or over time)
- one person keeps the home (and usually the home loan)
- both people decide to sell the home and divide the sale proceeds
- one person splits their superannuation and transfers an amount into a separate superannuation account in the other person's name
- one person transfers a motor vehicle to the other person
- both people agree to be responsible for their own debts, and
- both people agree to keep the money and personal items which belong to them.
What are some ways I can try to reach an agreement with my ex-partner about dividing property?
If you have separated and want to try to reach an agreement about dividing property, generally the first step is to try to talk your ex-partner and exchange emails or letters (perhaps with help from a lawyer). In cases where there has been family violence this may not be appropriate and you should seek legal advice and assistance.
Another way you can try to reach an agreement about property is to attend Alternative Dispute Resolution (ADR). ADR is a process which involves you and your ex-partner meeting with a qualified independent person whose role is to help you reach an agreement about your property dispute.
Some types of ADR include:
- Family Dispute Resolution (FDR) - a mediation process guided by a FDR Practitioner, which can help separated couples reach an agreement about dividing assets and liabilities. It aims to achieve a fair and practical property settlement, without going to the Family Court. For more information about using FDR to divide property see here.
- Arbitration - a private Arbitrator decides how property is to be divided. The separated couple choose the Arbitrator and have control over the process. For more information see the Family Court Brochure Arbitration.
amica is a secure online tool which can help separated couples reach agreement about dividing property. amica uses artificial intelligence and can provide a suggested split of property. amica can also help you complete the forms you need to apply to the Family Court for consent orders for a property settlement. Visit amica to find out whether it is right for you.
I have reached an agreement with my ex-partner, what should I do next?
You can make your agreement legally binding and enforceable by making an application to the Family Court for consent orders.
The Family Court must be satisfied the agreement you have reached with your ex-partner is fair before the court will make orders in terms of your agreement.
The Family Court of WA website has information about applying for consent orders. The Family Court of WA website also has examples of property orders, which can be used to help write draft consent orders.
If you are using amica, it can suggest draft consent orders and pre-fill the Application for Consent Orders (Form 11).
Formalising an agreement about dividing property by making an application for consent orders is a good idea because it means:
- you have a legally binding and enforceable property agreement
- it will be harder for your ex-partner to make a claim for your property in the future
- you will be able to divide your superannuation
- you will not have to pay the usual stamp duty costs if you are transferring a house or a car to your ex-partner, and
- you have certainty and finality.
An application for consent orders and an application for divorce are treated separately. You can file an application for consent orders with the Family Court any time after separation, as long as you file within the time limits detailed below.
Are there time limits for starting a property case?
There are time limits for starting a property case in the Family Court and for applying to the Family Court for consent orders.
If you were married, you need to file an application in the Family Court within 12 months of the date your divorce becomes final.
If you were in a de facto relationship, you need to file an application in the Family Court within 2 years of the date of separation.
Once the time limit has expired you would need to seek special permission from the court to start a case in the Family Court or to apply to the Family Court for consent orders. Leave is not always granted. You should get legal advice about this situation as it is complex.
Fact sheet - Property: Consent orders
Reviewed: 27 September 2022