Last updated 13 June November 2016

The distinction between property and financial resources is important because if the court determines the person’s interest is:

  • property, then the value of the property will be included in the assets and liabilities of the parties to be distributed between them, usually described as the ‘property pool’
  • a financial resource (e.g. interest in family trust, if the party does not control the trust), then the value of the financial resource will not be included in the pool, but may be considered in another way such as by making an adjustment in favour of the other spouse under s 75(2) of the Family Law Act 1975 (Cth) (Family Law Act)
  • neither property nor a financial resource but a mere expectancy (e.g. an interest under a will where the person who made the will is still alive) or the person has no interest at all, then the value of that item or thing will be excluded from the pool and will ordinarily have no bearing upon the outcome of the property settlement.

When orders can be made for married couples

The family law courts have power to make orders concerning the property of married people either:

  • before a divorce, as long as the proceedings arise out of the marital relationship. It is rare for the court to make property settlement orders where the parties have not separated. Such orders may be made, however, in some circumstances such as where one of the parties is incapacitated (see Stanford and Stanford (2012) FLC 93-518 and Jennings v Jennings (1997) FLC 92–773)
  • following a divorce. An application for a property settlement must be made within 12 months of the date on which the certificate of divorce is issued (s 44(3) Family Law Act). After this time, a person who wishes to apply for an order in relation to property settlement must obtain the leave of the court, which will only be given if the court is satisfied that hardship would be caused to the party to the marriage or to a child of the marriage if leave was not granted.

A party to a former marriage should seek legal advice well before 12 months after their divorce.

When orders can be made for de facto couples

The Family Law Act also applies to de facto couples who separated after 1 March 2009 or those who separated prior to that date (and have sought leave to commence proceedings) but agree to opt in to the Family Law Act.

A de facto relationship for the purposes of the Family Law Act is one between two adults (whether heterosexual or same sex) who are not legally married to each other, not related by family (s 4AA(6) Family Law Act) and live together on a genuine domestic basis. The Family Law Act contains guidance for the court in determining whether a de facto relationship exists by having regard to (s 4AA(2)):

  • the duration of the relationship
  • the nature and extent of their common residence
  • whether a sexual relationship exists
  • the degree of financial dependence or interdependence and any arrangements for financial support between them
  • the ownership, use and acquisition of their property
  • the degree of mutual commitment to a shared life
  • whether the relationship was registered under a prescribed law of a state or territory (e.g. under the Civil Partnerships Act 2011(Qld))
  • the care and support of children
  • the reputation and public aspects of the relationship.

In addition, for the Family Law Act to apply:

  • one or both members of the couple must be ordinarily resident in a participating jurisdiction, including Queensland, and all other states and territories of Australia other than Western Australia, at the time that the application is commenced
  • the relationship must have lasted for at least two years (or periods which total two years), or there must be a child of the relationship or the applicant must have made substantial contributions to property to an extent sufficient to cause a serious injustice if the case was not permitted to proceed
  • the couple must have been ordinarily resident in a participating jurisdiction for at least one-third of the relationship or the applicant must have made substantial contributions in at least one participating jurisdiction
  • the application must be brought within two years of separation, subject to leave based on whether or not the applicant would suffer hardship.