Money and property
Learn about how separating couples can divide money and property fairly.
Dividing your money and property when you separate
The way a couple divides their money and property after separating will depend on their individual circumstances.
To divide things fairly you should take into account assets and debts, the contributions each person has made, and each person’s future needs. It’s important to remember the contributions of both the homemaker and the income earner.
If a couple can’t reach an agreement on how to divide their money and property then they can go to court. The court has wide powers to help you to get a fair and equitable division.
Important: The Family Court has time limits for applying for money and property orders.
- If you are divorced: the time limit is 1 year from when you finalised your divorce.
- If you were in a de facto relationship: the time limit is 2 years from when your relationship broke down.
Did you know that superannuation entitlements can be divided between you and your former partner? "Superannuation splitting orders" as they are known are used to divide parties' superannuation interests or entitlements.
When there is a difference in your superannuation balances, you have two options to work out a fair division of your money and property in amica. You can both agree to each keep your own superannuation entitlements, or you can agree to divide your superannuation interests. Dividing your superannuation involves transferring a part of your superannuation to your former partner.
In amica, users can agree to use a part of their superannuation to contribute to their overall settlement, meaning that they can agree to offset some of the cash settlement sum as superannuation. However, this is not a cash payment but a transfer of superannuation funds from one fund to the other, so it has different rules and a different legal process.
Types of Superannuation Funds
Accumulation funds - In an accumulation fund, your funds experience growth or 'accumulate' gradually over time. The total value of your superannuation depends on the combined contributions made by you and your employers (known as super contributions), as well as the investment returns generated by the fund after deducting fees and costs.
Defined benefit funds – In a defined benefit funds operate differently, as they calculate your retirement benefit using a predetermined formula rather than relying on investment returns. Typically associated with corporate or public sector funds, many of these plans are no longer accepting new members.
Partially vested accumulation interest funds - Accumulation interest funds are categorised as either fully vested or partially vested. When fully vested, the member possesses complete rights to the entire value of the fund. However, in the case of partially vested accumulation interest funds, there is an additional component that can be included in the member's entitlement after fulfilling specific conditions
Pets are considered a type of property when you are separating from your partner.
Child support is different from dividing your money and property when you separate. Child support is the ongoing financial support for children paid by parents after separating.
The costs of raising children should be shared between parents based on their individual incomes and the parenting arrangements for the children.
You cannot use amica to claim child support.
You can find legal help about child support from the free Legal Help Line in your state or territory.
Spousal maintenance is different from dividing money or property. But the way that separating couples divide their money and property can affect the payment of spousal maintenance.
Spousal maintenance includes de facto maintenance.
You cannot use amica to get spousal maintenance.
You find legal help about spousal maintenance from the free Legal Help Line in your state or territory.
Separation and wills
If you have money or property that you want to leave to someone else when you die it is important to make a will.
Does separating affect my will?
If your children normally live with you, you can say in your will who you would like to care for them after your death. The most important thing to consider is the best interests of the child. You can find legal help about your obligations to provide for your children in your will and about how separating can affect your will from the free Legal Help Line in your state or territory.
Table of document options for dividing money and property
|Who makes this?||Things to consider||Can amica provide this?|
|Property agreement||You agree between yourselves.||Agreements between you are not binding (enforceable) but if you both stick with what you have agreed they are effective.||Yes, amica can generate Property Agreements in writing, showing what you have both agreed.|
|Application for Consent Orders||You agree on what you want to do and ask the Court to make Orders about what you have agreed.||The agreement needs to be fair for the Court to make the Orders. |
Once the Court makes Orders, they are binding (enforceable).
|Yes, amica can generate the Court application documents, filled in with the information that you provide.|
|Financial Orders||If you can’t agree between you, you can apply to the Court to make orders for you.||If you can’t agree, the Court can decide how your money and property should be divided to achieve a fair division. |
Court Orders are binding (enforceable).
|No, amica does not provide Court documents where you can’t agree between yourselves about how you want to divide your money and property.|
Documents for Money and Property
You have several options about the documents you would like to create when you use amica.
You have the option to create a Property Agreement document, or create an Application for Consent Orders (which includes several documents), or both.
You will both need to agree on the selection in order to create documents.
Check your timing before choosing to create an Application for Consent Orders
Before creating an Application for Consent Orders it is important to check your timing, because the Courts have time limits when applying for Orders about money and property.
If you are already divorced, you have 12 months to apply, from the date that your divorce was finalised.
If you were de facto, you have 2 years to apply, from the date that your de facto relationship ended.
Once the time limit expires you need special permission of the Court to file an application. Permission is only granted in limited circumstances. If you are not sure about your timing or you think a time limit will expire soon, you can get free Legal Help here to discuss timing in your situation.
What if we want to do both?
Most couples choose one option or the other. There is no requirement to create both; but you have the option to create both if you want to.