What Is a Property Order?

A property order is a court order that sets out how property, assets, and liabilities will be divided between parties following the breakdown of a marriage or de facto relationship. It may also include provisions about superannuation and financial resources.

The Family Law Act 1975 (Cth) governs how these matters are decided. Specifically, section 79 of the Act provides the power for the court to alter property interests between parties to a marriage Family Law Act 1975 - V….

For de facto couples, section 90SM of the Family Law Act 1975 (Cth) contains a similar provision Family Law Act 1975 - V….

What Does the Court Consider?

When making a property order, the court follows a four-step process:

1.      Identify and value the asset pool – this includes all property, liabilities and financial resources of both parties.

2.      Assess contributions – both financial and non-financial, including homemaking and parenting.

3.      Consider future needs – such as age, health, earning capacity, and care of children.

4.      Ensure the outcome is just and equitable – the court must be satisfied that the final order is fair under section 79(2) for marriages or section 90SM(3) for de facto relationships FamilyLaw Act 1975 - V….

When Can You Apply?

You can apply for a property order at any time after separation, but there are strict time limits:

• ‍For married couples, you must apply within 12 months of the date a divorce order takes effect (section 44(3) of the Family Law Act 1975 (Cth)) Family Law Act 1975- V….‍
• For de facto couples, you must apply within 2 years of the date of final separation (section 44(5)).

In limited cases, the court may allow an application outside these time limits if hardship would be caused to a party or child (section 44(4) and44(6)).

When Do You Need a Property Order?

You may need a court to make a property order if:

• You and your former partner cannot reach an agreement.
• You have concerns about your legal rights being respected or protected.
• There are significant or complex assets involved.
• One party refuses to disclose financial information.
• There’s a need to formalise the agreement to prevent future claims.

Even if an agreement has been reached, obtaining a court order (by consent) ensures the settlement is legally binding and enforceable.

The Role of the Court

The court encourages parties to resolve disputes without litigation. You must usually try alternative dispute resolution, such as mediation, before applying to the court (unless exempted).

If court proceedings are necessary, the court has wide-ranging powers. Under section 79 for married couples and section 90SM for de facto couples, the court can:

• Transfer property
• Split superannuation
• Adjust liabilities and debts
• Alter property interests
• Make orders binding on third parties such as banks or trustees (sections 90AE and 90AF) Family Law Act 1975 - V…

All orders must be “just and equitable” in light of the circumstances.

What Is a Just and Equitable Outcome?

The phrase “just and equitable” does not mean equal. The court considers a wide range of factors, including contributions made by each party, the length of the relationship, and each person’s future financial position.

For example, if one partner gave up a career to raise children, that will weigh heavily in the court’s consideration.

Don't Miss Your Deadline

Missing the limitation period could mean you lose the right to make a claim. That’s why it’s crucial to seek legal advice early.

Stanley & Co Lawyers can help you determine your legal position, protect your interests, and prepare any necessary court documents.

How We Can Help

At Stanley & Co Lawyers, we specialise in family law and property settlements. Whether you’re starting the process, facing a deadline, orresponding to a court application, we provide clear advice and strategic representation.

We can:

• Assess your eligibility and entitlements
• Represent you in court proceedings
• Negotiate and draft consent orders
• Prepare and file court documents
• Ensure compliance with all deadlines and procedural requirements