What are the laws around dividing assets?

If you divorce your spouse or if your de facto relationship breaks down, you may need to divide your assets. In a short relationship, it may be enough to take back the property you brought into the relationship. If you acquired assets together, however, the process of property division can be more complicated.

The division of assets is part of a property settlement. It can be accomplished in one of three ways. We will discuss each of them here.

Negotiate a property settlement - no court involvement

Unless you face an emergency, including the possibility of violence, you must attempt to negotiate a property settlement before you ask a court to divide your property. If you need help, the nearest Family Court Registrar can give you a list of Dispute Resolution Services in your area. Those services can provide you with a mediator who will help you communicate with your former spouse.

The principles of property settlement are discussed in more detail elsewhere on this website. You should keep those principles in mind when you negotiate a property division. By predicting what a court would do if you ask the court to divide your property, you will have a basis for negotiating a settlement. You will also save the time and expense of going to court while maintaining control of the outcome.

You might find it helpful to obtain legal advice before you begin your negotiation. A lawyer can tell you what a court would probably do if you applied for a financial order. Having that information will assist you in negotiating a fair settlement.

Negotiate a property settlement - consent order

If you are successful in dividing your property and nothing more needs to be done, you may not need anything from the court. However, if your agreement requires property to be divided or money to be paid in the future, or if it imposes a duty on your former partner to sign documents in the future, you might want a consent order.

You can apply to the court for a consent order by putting your agreement in writing and filing an application for the court to make an order that incorporates the terms of that agreement. A consent order is easy to obtain and is just as enforceable as an order entered after a contested hearing.

Apply for a financial order

You can ask the court to make a property settlement by applying for a financial order. That process, including the requirement that you first engage in dispute resolution, is discussed in more detail in other articles on this website. You might want to have a lawyer assist you in presenting evidence and making arguments to the court.