How do I apply for property and financial orders?

What is a financial order?

A financial order is a set of orders made by the Court relating to the division of property or money and can include orders for payment of spouse or de facto partner maintenance. The Court can make a financial order based on an agreement between the parties (consent orders) or after a court hearing or trial. When a financial order is made, each person affected by the order must follow it. See Finances and property: Compliance and enforcement.

The Family Law Act sets out the general principles the Court considers when deciding financial disputes after the breakdown of a marriage (see Sections 79(4) and 75(2) ) or a de facto relationship (see Sections 90SM(4)  and 90SF(3) ). These general principles are the same, regardless of whether the parties were in a marriage or a de facto relationship. The way your assets and debts will be shared between you will depend on the individual circumstances of your family. Your settlement will probably be different from others you may have heard about.

You can apply for orders relating to:

  • property – to say how your property, income, financial resources and debts should be shared between you
  • maintenance – to provide financial support for a (former) husband or wife, or (former) de facto partner
  • child support – in certain circumstances (under sections 96, 116, 123 or 129 of the Child Support Assessment Act).

NOTE: You can apply for property/financial and parenting orders in the same application. See How do I apply for parenting orders? for more information.

For more information see:

Seeking legal advice

It is advisable to obtain legal advice before making a decision about what to do or before applying to the Court. A lawyer can help you understand your legal rights and responsibilities. They can also explain how the law applies to your case. A lawyer may also be able to help you reach an agreement without going to court.  The Court is unable to provide legal advice to people with family relationship issues. To do so could seriously compromise the Court's ability to impartially determine a case if a person then applies to the court seeking orders.

Where can I obtain free legal advice?

The Family Relationship Advice Line (FRAL) can help you with free legal advice and information about services available to assist anybody with family relationship issues - call 1800 050 321 or +61 7 3423 6878 if you are overseas.  You should advise FRAL that you are seeking legal advice and they will take your details and a lawyer will call you back.  The will advise you of a timeframe on the call back, you should advise if it is urgent.

For more information see Get help.

Can the Court refer me to a private lawyer?

The Court is unable to refer you to a private lawyer. If you are looking for a private lawyer who deals with family law matters, a law society in your state or territory may be able to help. For a list of law society's go to Law Council Law Society

Pre-filing procedures in property and financial matters

Before starting financial proceedings each party must make a genuine effort to resolve the dispute and comply with pre-action procedures. There may be serious consequences for non-compliance, including costs orders against a party if they do not comply. Parties are not required to follow or continue pre-action procedures if it is not safe to do so.

It is important to read the information in the brochure Before you file - pre-action procedures for financial cases and the flow chart, Pre-Action Procedures: What to do before you file your family law application.

 

If all parties have reached agreement and want to formalise the agreement to make it legally binding they can apply to the Court for consent orders. See How do I apply for consent orders? for more information. You can also do this through a binding financial agreement with a lawyer. For more information about financial agreements, see Financial Agreements below.

For more information see Finances and property: We have agreed.

If there is no agreement and your application will need determination by the Court, then one party can start court proceedings by filing an Initiating application to ask the Federal Circuit and Family Court of Australia to make orders.

For information about filing an application see Filing an application with the Court below.

Types of financial and property matters

Select the relevant type of financial/property matter below for more information:

Parties to an eligible de facto relationship which has broken down can apply to the Court to have financial matters determined in the same way as married couples. A de facto relationship is defined in Section 4AA of the Family Law Act 1975.

You must apply for de facto financial orders within two years of the breakdown of your relationship. After this time you need the Court's permission to apply.

For more information, see the fact sheet De facto relationships.

Helpful hint: De facto couples should also refer to the legislation: Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 

See the next section Spousal maintenance for more information about De facto partner maintenance.

NOTE: If you are seeking spousal maintenance orders only and no other type of financial or parenting orders, there is no filing fee payable and you can eFile this application by choosing the unguided Initiating application process on the Commonwealth Courts Portal.

The Court can deal with two types of spousal maintenance applications:

  • Spouse maintenance is financial support paid by a party to a marriage to their former husband or wife in circumstances where they are unable to adequately support themselves.
  • De facto partner maintenance is financial support paid by a party to a de facto relationship that has broken down to their former de facto partner in circumstances where they are unable to adequately support themselves.

If you were married, applications for spouse maintenance must be made within 12 months of your divorce becoming final. If you were in a de facto relationship, your applications for de facto partner maintenance must be made within two years of the breakdown of your de facto relationship. If you do not apply within these time limits, you will need special permission of a court. This is not always granted.

See Spousal and de facto maintenance for more information.

If a child turns 18 while they are in full-time secondary education and there is a child support assessment in place, you can apply to Child Support  to extend the assessment. An extension will continue until the last day of that school year. The application to Child Support must be made before the child turns 18, unless there are exceptional circumstances s.151B  of the Child Support (Assessment) Act 1989.

In all other cases the Courts can make an order for maintenance, where the maintenance is necessary to enable that child to complete their education; or because of the child's mental or physical disability. An order may be made for a 17 year old child that begins when the child turns 18 - see s.66L  of the Family Law Act 1975.

NOTE: you should eFile this particular type of application on the Commonwealth Courts Portal by selecting the unguided Initiating application process. There is no filing fee payable.

For information about filing an application see Filing an application with the Court below.

The superannuation splitting law treats superannuation as a different type of property. It lets separating couples value their superannuation and split superannuation payments, although this is not mandatory. Splitting does not convert it into a cash asset – it is still subject to superannuation laws (for example, it is usually retained until retirement ages are reached).

For more information see Finances and property: Superannuation.

You will need to complete the Superannuation Information Kit along with the other forms required, when filing your application. See Filing an application with the Court below.

Parents are responsible for the financial support of their child/ren. Services Australia (Child Support) is responsible for administering Australia's child support scheme. You cannot apply to the Court for this.

This responsibility is not changed by separation and divorce, where the child lives or the amount of time they spend with a parent, or the remarriage of one or both parents. Payments made for the support of your child/ren under the child support laws are known as 'child support'.

In some limited circumstances (under sections 96 , 116 , 123  or 129  of the Child Support Assessment Act) you can apply to the Court for a departure from a child support assessment made by the Department of Human Services. You should seek legal advice or contact the Services Australia (Child Support)  on 131 272 before making an application in the Court.

For more information about what type of child support applications and appeals can be filed in the Court, see Finances and property: Child support and maintenance.

NOTE: If you are seeking spousal maintenance orders only and no other type of financial or parenting orders, there is no filing fee payable and you can eFile this application by choosing the unguided Initiating application process on the Commonwealth Courts Portal.

In a financial order, a court can order a person to pay money to another person by a certain time, transfer or sell property or sign documents. When a financial order is made, each person bound by the order must follow it. See Finances and property: Compliance and enforcement for more information.

If a person has refused to obey an order about property or financial support made under the Family Law Act 1975, your options include attending dispute resolution, getting legal advice, and applying to the Court for an enforcement order.

NOTE: you cannot eFile these applications on the Commonwealth Courts Portal.

Enforcement

The law on enforcement of orders is complicated. You should get legal advice before starting any proceedings to enforce a court order.

For more information see Finances and property: Compliance and enforcement.

The Court can deal with the bankruptcy of a party to a marriage or de facto relationship involved in certain family law proceedings. The impact on parties is complex and legal advice should be obtained as the facts of each case are different.

For more information see Finances and property: Bankruptcy in family law.

NOTE: you cannot eFile this application type on the Commonwealth Courts Portal.

The Family Law Act 1975 provides for parties to a marriage or de facto relationship to enter into a binding legal agreement about the financial arrangements should their marriage or de facto relationship break down. Sometimes people know these agreements as 'prenuptial agreements' but the legal term is 'financial agreements'.

Sections 90B -90KA  of the Family Law Act 1975 deal with financial agreements by parties to a marriage and sections 90UA -90UN  apply to financial agreements by de facto couples (if the de facto couple are ordinarily resident in a participating jurisdiction).

You can make a financial agreement before, during or after a marriage or de facto relationship and these agreements can cover; financial settlement (including superannuation entitlements) after the breakdown of the relationship; financial support (maintenance) of one spouse by the other after the breakdown of a marriage or a de facto relationship or any incidental issues.

For a financial agreement to be legally binding you must both have signed the agreement and received independent legal and financial advice before signing.

A Court can set aside or enforce a binding financial agreement once the agreement has been declared valid by a court order. To ask the Court to set aside or enforce a binding financial agreement you will need to file an application with the Court (see Filing an application with the Court below), including an order to declare the agreement valid and deal with the enforcement.

For more information see Finances and property: Financial agreements.

Filing an application with the Court

NOTE: If all parties have reached agreement and want to formalise the agreement to make it legally binding they can apply for consent orders. See How do I apply for consent orders for more information.

You should electronically filing (eFiling) applications. This allows you, within a secure website, access to information about your court file, the ability to eFile a range of applications and supporting documents, and to pay the filing fee, online 24/7.

You cannot eFile if:

  • you do not have access to the required technology, or
  • you are unable to pay by credit/debit card online (see Helpful Hint under Unable to eFile below).

NOTE: parenting and property/financial orders can be sought in the same Initiating Application.

If for any reason you cannot eFile the application click on Unable to eFile below.

To register for the portal go to www.comcourts.gov.au

There are two options when eFiling an application:

  • Guided – uses the online interactive Initiating Application form together with uploading supporting documents
     
  • Unguided – complete an online form and upload the application and supporting documents.

The following are the forms required when eFiling an application seeking financial orders:

Helpful hint - For more information about eFiling applications on the Commonwealth Courts Portal see How do I eFile?

 

Follow the instructions on the Initiating Application Kit to help you file your application. The following are the forms required when eFiling an application seeking financial orders:

Once you have completed and signed the application you can file the original application and documents + one copy for each party together with the filing fee at a Court registry.

There are some specific applications which require different documents; for example, Enforcement and contravention (see Contravention or enforcement of financial orders above).

You will be required to pay a filing fee unless you are eligible for an exemption. For fees information go to Fees. Depending on what type of orders you seek will depend on the amount of fees. Fees are payable at the time of filing. 

If you electronically file the application you will be required to pay the filing fee by credit/debit card (visa/mastercard) when you complete the application. If you file the application at a Court registry you will need to pay the filing fee at the same time. 

NOTE: If you DO NOT have a credit/debit card you can buy a pre-paid debit card from various retail outlets for a nominal fee.

To find out if you are eligible for an exemption of fees refer to the Guidelines for exemption of court fees

If you are eligible for an exemption you will be required to provide documentary evidence e.g. health care card when you file the application.  

  • If you electronically file you will be asked to confirm you are eligible in Part 1 of the application and to upload the documentary evidence at Part 2.
  • If you are unable to electronically file you must file the Application for exemption from fees – General together with the documentary evidence e.g. both sides of your health care card with the Initiating Application.

If you are not eligible, but paying the fee will cause you financial hardship you can apply for an exemption due to financial hardship.

You are now required to serve the documents on any other party.

If you eFiled the Initiating Application you will be able to select a court date and print the documents for service.  To print the sealed application and documents go to your file in the Commonwealth Courts Portal and select the heading Documents Filed then click on the PDF icon next to the document to download and print.

If you have filed your application at a registry the Court will allocate a court date and return the documents to you.

You are then required to serve the filed documents on the other parties. See How do I serve family law documents for more information.

Urgent applications

An urgent order can be sought in financial proceedings. Applications for contravention cannot be heard urgently. 

Urgent applications will generally seek an order for short service or that the matter be heard ex-parte and an urgent hearing. 

If you eFile you must choose the unguided option to file an urgent application.

Urgent orders in financial applications are generally sought if an injunction is required 

An order may be sought to seek an urgent listing as an interlocutory order in an Initiating Application and must be accompanied by: 

  • An affidavit stating the facts relied on in support of the urgent application
  • A cover letter as to urgency, outlining the nature of the application and the basis upon which an urgent listing is required. The cover letter should refer to specific paragraphs of the affidavit relied upon in support of the urgent application. If you eFile, you can upload the letter at Step 2 of the application.

Any application made by a party for an urgent listing will be determined by a registrar on the papers. In making its determination the Court will consider:

  • Is there a good reason for the matter not proceeding through the normal court process.
  • Whether a judge is available to hear the application on an urgent basis.