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If you agree how to divide property

If you and your ex-partner agree about how your property will be divided, you can:

  • make an informal agreement
  • make a financial agreement
  • get consent orders approved by the court.

This can save you time and money.

Note: Information on this page also applies to de facto couples who separated after 1 March 2009. If you’re not married, and you separated before this date, get legal advice.

Informal agreements

An informal agreement can be written or spoken. Informal agreements are not recommended as they are not enforceable by a court. This means either partner can ask for another settlement or seek maintenance in the future.

You can make your agreement legally enforceable by making a financial agreement or having a consent order made by the court.

Financial agreements

You can make a financial agreement about your property, before, during or at the end of a relationship. This is written document that states how you want your property to be divided if you separate. It does not have to be approved by the court.

There are strict requirements before a financial agreement can be considered legally enforceable. Both people must sign it. It must also contain a statement that each person has received independent legal advice covering:

  • how the agreement will affect their rights
  • whether or not the agreement is to their advantage.

Each person’s lawyer must provide a document saying that independent advice was given before the agreement was signed.

Financial agreements can cover:

  • how your property is divided
  • ongoing financial support – see ‘Maintenance for partners’ (link below)
  • other related issues.

If you have a financial agreement, you can divide your property according to the agreement. You do not need to go to court.

Changing or cancelling financial agreements

To cancel or change a financial agreement both parties have to:

  • get another document from their lawyer to show that legal advice has been given
  • sign another written agreement, called a Termination Agreement.

If you can’t agree, the court can change or cancel a financial agreement if you can prove that:

  • there was a fraud (dishonesty) 
  • the agreement is not practical to carry out (not just inconvenient) 
  • there is a major change in the care and welfare of children the other person has acted in an ‘unconscionable’ (unethical or unfair) way.

Consent orders

A consent order is an agreement between ex-partners that is approved by the court and then becomes a court order. Consent orders for property disputes have the same legal force as other court orders.

Consent orders can cover:

  • how your property is divided
  • ongoing financial support – see ‘Maintenance for partners’ (link below).

The court must be convinced that the agreement is fair before it will make a consent order. How fairness is decided is set out in the Commonwealth Family Law Act 1975. See ‘Fair division of property’ (link below).

An Application for consent orders kit is available on the Family Law Courts website (link below). There is no filing fee to apply for consent orders.

Get legal advice

Consent orders or legally binding agreements are extremely difficult to change once they have been made. It is very important not to enter into a property agreement without legal advice.

A lawyer can also help you work out an agreement.

Time limits

You must apply for a consent order:

  • within one year from the date your divorce order has taken effect
  • within two years from the date your de facto relationship ended.

You can only apply to the court for a property settlement after this time in special circumstances. Get legal advice.

Changing or cancelling consent orders

One of the court’s aims in making consent orders in property disputes is to ensure they are final and avoid the need for further proceedings. It is very difficult to change orders in property disputes.

To ‘set aside’ (cancel) consent orders in property disputes you need to prove that:

  • there was ‘fraud’ (dishonesty) 
  • the orders are not practical to carry out (not just inconvenient) 
  • there are exceptional circumstances relating to the care, welfare and development of a child or children of the relationship.

Need help to reach agreement

If you need help reaching agreement, a family dispute resolution service may be able to help. See ‘Family dispute resolution’ (link below).

More information

Fair division of property

Family dispute resolution

Financial maintenance for partners

Related publications

How to run your family law case

You and family law: a short guide

Related websites

Family Law Courts (new window)