Property Settlement
7. Property Orders by the Court
Authors: Staff Legal Eagle
Firm / Chambers:
Last updated: 22 Sep 2015
- Property orders are orders made by the court about the division of property including superannuation.
- The Family Court can make property orders if you and your ex-partner cannot agree about the division of property or spousal maintenance.
- One party can file an application with the court and the court will make whatever orders it considers suitable several months later at the end of the hearing.
- There are deadlines for applying to the court for a property settlement or spousal maintenance:
- if you were married you must apply within 12 months from the date that the divorce took effect;
- if you were in a de facto relationship you must apply within 2 years of the date of separation; or
- if you are outside these timeframes you should speak to a lawyer about circumstances justifying an application out of time.
- Property orders set out in detail how the division of property will occur.
- The orders will usually allocate the property from the joint asset pool to each party including how superannuation should be shared and if applicable the orders will make provision for spousal maintenance.
- The court must ensure the division is ‘just and equitable’. See How the Court Divides Property for more detail about exactly what the court takes into account.
- If you decide to represent yourself you will need to fill out an application form setting out the orders you seek and file it with the court. There is a filing fee unless you qualify for an exemption.
- If you decide to instruct a lawyer then the lawyer will charge for their time in taking your instructions, giving you advice and preparing documents as well as the court filing fee. However you will have a much better idea of your position and the likely outcomes from the court as well as knowing that your documents meet all the court’s requirements.
- After you have filed your application you will be given a date when the court will make directions about what needs to happen to bring the matter to conclusion.
- Both parties are required to reveal their financial situation in a written statement which you or your lawyer will prepare. It is very important to make sure this document sets out all your assets and liabilities honestly.
- After looking at and hearing all the evidence the court will make property orders.
- Property orders are enforceable just like any other court order. This means that if one party does not do what is ordered the court has the power to make them stick to the agreement.
- If someone breaches the property orders there can be serious consequences. If your ex-partner has breached the orders or if you think you may need to breach the orders it is a good idea to discuss the situation with your lawyer to find out exactly what you need to do.
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