Hi there. When a married or de facto couple separates, the parties are free to reach an agreement on how their assets will be divided between them. If the parties can negotiate an agreement, there is no need to go to court. However, the parties can apply to court if they want to make the agreement binding, or if the parties disagree on how to divide their property.

The law will ordinarily regard parties' contributions as approximately equal, especially in long term relationships, unless there is evidence that suggests the parties did not intend ownership to be shared equally. If you seek the assistance of a court in dividing your assets, the court will make its decision based on several factors, including: what each person owned before the relationship, the net value of each person’s current assets (including superannuation), financial and non-financial contributions (e.g. homemaking, maintenance) made by each person over the course of the relationship, and each person’s earning capacity and future needs. It is possible that, in determining each party's financial needs relative to their earning capacity, a party who is in greater and legitimate financial need may have the balance for division shifted in their favour.

Suggested way forward

Separation or divorce is a difficult experience, and how property will be divided depends greatly on your individual circumstances. For general information on property division, see the Family Court website (www.familycourt.gov.au). You would benefit from speaking to a family lawyer to help you understand your legal rights and to negotiate on your behalf. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.