Wherever possible, parties should attempt to reach their own agreement about the division of their property. This saves the expense, delay and worry of lengthy property proceedings which may take more than a year and cost thousands of dollars. Parties should, however, still seek legal advice upon separation and before entering into negotiations and finalising any agreement to protect their interests, to ensure that the agreement is fair, has the effect that they intend and will stand the test of time.

Options for family dispute resolution

Family dispute resolution may be available from some providers, such as Relationships Australia, to assist with the negotiation of property settlements. Please see the Relationships Australia publication, A fair share: Negotiating your property settlement for more information about family dispute resolution for the purposes of property settlement, and the procedures and steps involved.

The Legal Services Commission of SA currently provides some legally assisted family dispute resolution, called conferencing, through its Family Dispute Resolution Unit. To use this service at least one party must be eligible for legal aid. Usually, both parties and their lawyers are present. Agreements reached may then be made into consent orders. To find out more, see our Property Dispute Resolution Conferencing pamphlet.

National Legal Aid has developed an online service that helps separating couples reach agreement themselves about parenting and property issues. This low-cost service allows parties to reach and record agreements on a trusted secure online platform. For more information see amica – Assistance reaching and recording agreements, or visit the amica website (opens new window).

If parties would like their agreement to be final and binding (so there is no reopening of the matter by either party), they will need to either:

Consent Orders or Binding Financial Agreement

The Court has information about how to apply for consent orders on its website, How do I apply for consent orders? as well as an Application for Consent Orders Kit and a proposed orders template. The Commonwealth Attorney-General's Department Property and Financial Agreements and Consent Orders Guide provides information about how to negotiate, and draft consent orders for property and financial matters.

amica can also prepare an Application for Consent Orders (see the amica website (opens new window)).

In dealing with consent orders, the Court may require a party to file additional information or dismiss the application [see Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 10.07]. The Court must be satisfied as to why the consent orders should be made.

Binding Financial Agreements can set out how the parties would like their property to be dealt with in the event of or following their separation and can be entered into either:

This may be appropriate when both parties have obtained independent legal advice and where the property is fairly simple, for example, where the only property of substance are the principal residence, vehicles and household goods. Where the property is more complex, for example where superannuation entitlements are to be split, where a company or business is involved, where a guarantee has been given or where capital gains tax liabilities may arise, it is desirable that each party have both independent legal and financial advice before finalising any agreement.

Where the parties cannot agree, either party can apply to the Court for the division of their property. Time limits apply.

See Applying for property settlement.