Property

How Will Our Property Be Divided?

The law that relates to how property is divided for married couples is set out in the Family Law Act.

For de facto couples living in Queensland the law is set out in the Property Law Act.

Please note – the law that relates to how property is divided in de facto relationships is different for each State.

Married Couples

The Family Court has the right to say how property is divided when a marriage has broken up. However, the Court must be satisfied that what it decides is just.

The Court takes the following steps to work out how property will be divided:

• The Court takes an inventory of all assets and liabilities that existed at the time you separated. All assets are considered, whether they were acquired before or during the marriage.
• A current value is put on the assets.
• The Court must also work out the financial and non-financial contributions you both made during the marriage.

To do this the Court will consider things such as:

• what each of you owned at the time you were married;
• who paid for deposits, loan or mortgage repayments and improvements;
• who contributed to buying, conserving and/or improving assets;
• who contributed to the welfare of the family; and
• who carried out tasks such as painting, gardening, renovating and child care.

If either of you has acted in any way that would decrease the value of the assets, the Court is able to treat that behaviour as a negative contribution.

When deciding how the assets will be divided, the Court considers:

• your future needs;
• your future obligations;
• your financial situation; and
• the cost of caring for any children from the marriage.

Even though everything else may be equal, the resident parent with the primary care is usually given a slightly higher percentage of the property.

You must apply to the Court for property settlement within 12 months of a Final Divorce Order.

De Facto Relationships

In Queensland, the legislation relating to property settlement applies only to de facto couples who have separated after 21 December 1999.

A de facto relationship is one where there is a genuine relationship with trust, intimacy and personal commitment.

In Queensland, a de facto relationship is one where one of the following conditions exists:

• you have lived in a de facto relationship for at least two years. This includes same sex relationships;
• you have a child from the relationship; or
• it would be unjust not to recognise a de facto spouse’s financial or non-financial contribution.

Any property settlement claims must be made within two years from the date your relationship ended.

Generally, the Court considers the same factors in a de facto relationship as it does for a married couple, except for the following:

• neither of you can claim spouse maintenance; and
• superannuation is not ‘property’ in a de facto relationship.

Why The Difference?

Property settlements from a marriage are regulated by Commonwealth legislation.

Property settlements from a de facto relationship are regulated by State legislation.

It is hoped that legislation will be the same for both at some time in the future.

What Happens to Superannuation?

In property settlements for married couples, superannuation is defined as ‘property’. In de facto relationships, superannuation is a ‘financial resource’ not ‘property’.

The law for superannuation for married couples was changed in 2002. It provides detailed formulas for calculating superannuation in property settlements. These formulas need specialist advice. Ask your solicitor for help in these situations.

It is now possible:

• for a spouse to independently write to the other spouse’s superannuation fund to get information about the value of the superannuation;
• for superannuation funds to be split between the spouses and rolled over as part of a property settlement; and
• for spouses to let a superannuation fund know that they intend to split the fund at some time in the future. This is called a flag Order.

It is not compulsory to split superannuation. In some cases it could actually disadvantage one or both of you. So that a fair division can be made, it may be necessary to sell other assets. You should also consider the tax implications for receiving or splitting superannuation. 

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