Financial or property | Federal Circuit and Family Court of Australia

Financial or property: Death of a party

My former spouse or partner has died, can I apply for financial or property orders?

The Court only has jurisdiction to make financial or property orders if, at the time when the application was filed, both parties to the relevant marriage or de facto relationship were alive.

The time of filing is not necessarily the same as the time when you submitted your application to the Court. See rule 2.23 of the Family Law Rules 2021.

Our proceedings were started before my former spouse or partner died. What happens now?

Property settlement

When there are already property settlement proceedings on foot, and a party to those proceedings dies, the proceedings may be continued by, or against, the personal representative of the deceased person.

In other words, if someone involved in property settlement proceedings dies, the proceedings can continue, with the dead person’s personal representative (usually the executor of their estate) taking their place.

However, the orders which the Court ultimately makes may be different to the orders the Court would have made if the party had not died.

See sections 79AA(8) (in relation to marriages) and 90SMA(8) (in relation to de facto relationships) of the Family Law Act 1975, and rule 3.19 of the Family Law Rules 2021.

Maintenance

Spousal maintenance and de facto maintenance proceedings cannot be continued against a dead person.

Existing maintenance orders stop when a party dies. This means that:

if you are required by an order to pay maintenance, and the person receiving the maintenance dies, you do not need to pay maintenance to their estate, and
if you receive maintenance under an order, and the person paying the maintenance dies, you will not receive maintenance from their estate.

See sections 82(2) (in relation to marriages) and 90SJ(1) (in relation to de facto relationships) of the Family Law Act 1975.

Legal advice

You are not required to be represented by a lawyer, or to seek legal advice, before entering into consent orders or applying to the Court, or if you have been served with an application. However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.

For information on how to get legal advice, see Legal Help.

Financial or property: Bankruptcy in family law

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. If you are bankrupt, or the other party is bankrupt, you should get legal advice.

Legal terms

Bankrupt - a person:
- against whose estate a sequestration order has been made, or
- who has become a bankrupt by virtue of the presentation of a debtor’s petition.
See section 5 of the Bankruptcy Act 1966.
Creditor - a person to whom money is owed.
Debtor - a person who owes money to another person.
Injunction - a court order requiring a person to do, or to refrain from doing, a specified action.
Personal Insolvency Agreement – a deed between a debtor and creditor(s), aimed at avoiding bankruptcy of the debtor. The deed identifies the property and income available to pay creditors’ claims and how it is to be distributed amongst the creditors.

See Part X of the Bankruptcy Act 1996.
Trustee (in bankruptcy) - the trustee is the person who administers the estate of the bankrupt. The bankrupt’s property vests in the trustee. The trustee must sell all of the vested property and distribute the proceeds amongst the creditors, or sell sufficient property to pay the creditors and return any remaining money or property to the bankrupt. The trustee can be either a private individual (a registered trustee) or the Official Trustee.
Vest - a person in whom property is vested has the right to possess and control the property, including the right to sell it.
Vested property - all of the property of the bankrupt that belonged to him/her at the start of the bankruptcy or is acquired during the bankruptcy vests in the trustee, except for exempt property. Section 116 of the Bankruptcy Act 1996 defines exempt property. It includes property held by the bankrupt in trust, some household property, some personal property, property (to a certain value) used in earning income, a vehicle (to a certain value) used by the bankrupt, life assurance policies, some superannuation interests, rights to recover compensation for injury and any compensation recovered.

When can the Court deal with bankruptcy?

The Court can deal with any matter connected with, or arising out of, the bankruptcy of a party to a marriage or de facto relationship in proceedings for:

financial or property settlement under sections 79 and 79AA, or 90SM and 90SMA of the Family Law Act 1975, and/or
declaration of interest in property under sections 78 or 90SL of the Family Law Act 1975, and/or
setting aside financial or property orders under sections 79A or 90SN of the Family Law Act 1975, and/or
spousal (including de facto) maintenance under section 74 or 90SE of the Family Law Act 1975, and/or
enforcement of any of the above orders.

What is the effect of bankruptcy on the bankrupt?

Once a party to a marriage or de facto relationship becomes bankrupt, his or her property immediately vests in the trustee. This excludes some categories of assets such as most household goods, superannuation, some tools of trade and a motor vehicle up to a certain value.

Do pre-action procedures apply?

The pre-action procedures for financial or property proceedings do not apply to proceedings invoking the Court’s jurisdiction in bankruptcy under sections 35 or 35A of the Bankruptcy Act 1996.

The pre-action procedures apply to all other proceedings.

Can (or must) the trustee become a party to family law proceedings?

The trustee may apply to become a party to family law proceedings. If the trustee does become a party, the bankrupt cannot make any submissions to the Court about property already vested in the trustee, except with permission of the Court.

Does the non-bankrupt party to the marriage or de facto relationship have priority over the creditors?

The Court must determine the competing rights of the creditors and the non-bankrupt party, neither has priority.

Can the Court order the transfer of property vested in the trustee?

Yes, the Court can order the trustee to transfer vested property to the non-bankrupt.

What if either party to a marriage or de facto relationship is a debtor subject to a personal insolvency agreement?

If a party to a marriage or de facto relationship, who is a party to property settlement or maintenance proceedings, is or becomes, a debtor subject to a personal insolvency agreement then:

the above information relating to bankrupt parties, applies to the debtor party
the above information relating to trustees in bankruptcy applies to the trustee of the debtor party’s property.

When do I need to give notice to the Court?

Parties to a financial or property case, including enforcement of financial or property orders, must notify the Court at the start of (or during the case) if they are (or become) a bankrupt or a debtor subject to a personal insolvency agreement.

When do I need to give notice to my trustee?

A bankrupt or a debtor subject to a personal insolvency agreement must notify his or her trustee if he or she becomes a party to family law financial proceedings.

Who can apply to set aside or vary orders made in property settlement proceedings?

Any person affected by an order made in financial or property settlement proceedings can apply to have such order set aside or varied.

A creditor of a party to the financial or property settlement proceedings is able to make an application to have an order that prevents them from being able to recover a debt owing to them set aside or varied.

In cases where a party to the marriage or de facto relationship is a bankrupt or debtor subject to a personal insolvency agreement when a financial or property settlement order is made, or becomes so after the order is made, the trustee is able to have the order set aside or varied.

(see sections 79A and 90SN of the Family Law Act 1975).

Can the non-bankrupt party to a marriage or de facto relationship apply to restrain the trustee?

Yes, the non-bankrupt party to a marriage or de facto relationship can apply to the Court for an injunction to restrain the trustee from declaring or distributing dividends amongst the creditors of the bankrupt or debtor party to their marriage or de facto relationship.

What if costs are ordered?

Unless the Court orders otherwise, a person entitled to costs in a case to which the Bankruptcy Act 1996 applies is entitled to costs in accordance with Part 40 of the Federal Court Rules 2011 (see Part 13 of the Federal Circuit and Family Court of Australia (Division 2) (Bankruptcy) Rules 2021.

What forms do I need to use?

The following bankruptcy forms can be filed in family law proceedings:

Legal advice

You are not required to be represented by a lawyer, or to seek legal advice, before entering into consent Orders or applying to the Court, or if you have been served with an application. However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.

For information on how to get legal advice, see Legal Help.

More information

The Family Law Practice Direction – Financial or property proceedings sets out the procedural requirements and steps in proceedings about financial or property matters, and the Family Law Practice Directions – Bankruptcy Act proceedings sets out the procedure for family law proceedings to which sections 35 or 35A of the Bankruptcy Act 1996 apply.

Financial or property: Superannuation

How does the law treat superannuation?

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 superannuation into a cash asset – it is still subject to superannuation laws (for example, it is usually retained until retirement ages are reached).

Options for splitting superannuation

Your respective superannuation interests can be adjusted by ‘splitting’ one or more of them. If you want to adjust superannuation interests, you must do so when formalising your financial arrangements, whether by agreement (see We have agreed) or application to the Court (see We cannot agree). However, it is not mandatory to adjust superannuation interests.

Procedural fairness to trustee

Superannuation splitting orders require the trustee of the relevant superannuation fund to do certain things. As a matter of procedural fairness (the right by a person to be heard by the Court before the Court makes orders affecting that person), the trustee of the superannuation fund must be given notice of a proposed superannuation splitting order before it can be made, whether by agreement or following a determination by the Court.

See rules 1.12(5), 1.12(6) and 10.06 of the Family Law Rules 2021.

More information

For more information, including the steps involved in splitting a superannuation interest, see the factsheet Family law and superannuation.

Legal advice

For information on how to get legal advice, see Legal Help.

Financial or property: Child support and maintenance

When the Court can assist

Child support is usually dealt with administratively through Services Australia (Child Support) (Services Australia), rather than through the Court. It is governed primarily by the Child Support (Assessment) Act 1989.

The Court may consider child support proceedings only in limited circumstances. This occurs primarily in relation to:

child support appeals, where a party has gone through all steps of the administrative process, and ultimately needs to appeal an administrative decision to the Court
where an administrative child support assessment has been issued, and the eligible carer (the person receiving child support) seeks that the payment of non-periodic child support (see section 123 of the Child Support (Assessment) Act 1989), and
where an administrative child support assessment has been issued, and a party to that assessment seeks to depart from it (wants it changed) because of special circumstances (see section 117 of the Child Support (Assessment) Act 1989) and either:
1. the Court is already dealing with a case involving the parties, and the Court is satisfied that it would be in the interests of the parties, in the special circumstances of the case, for the Court to consider the child support departure application, or
2. the assessment provides for the minimum level of child support to be paid (see section 66 of the Child Support (Assessment) Act 1989).

The Court also has power to make child maintenance orders pursuant to the Family Law Act 1975, but only where a party cannot apply for child support under the Child Support (Assessment) Act 1989 (see section 66E of the Family Law Act 1975).

Before you apply to the Court

The Court only has the power to hear certain types of child support applications and appeals. In most situations, parents or eligible carers must first satisfy all administrative requirements with Services Australia (Child Support).

For more information about fulfilling the Services Australia administrative requirements:

go to the Services Australia (Child Support) website, or
or call Services Australia on 131 272 or 1800 241 272.

Generally, a parent or eligible carer who disagrees with a Services Australia decision must lodge an objection with Services Australia, and wait to receive a response. If they are unsatisfied with the response, an application can then be made to the Administrative Review Tribunal (ART) for a review of an objection decision.

The ART cannot, however, review all objection decisions of the Services Australia. To find out which objection decisions the ART can review:

go to the ART website, or
call the ART on 1800 228 333.

Where the ART cannot review an objection decision, parents or eligible carers may be able to apply to the Court for orders.

Financial support for a child who has turned 18 years of age

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 Services Australia (Child Support) to extend the assessment. An extension will continue until the last day of that school year. The application must be made before the child turns 18, unless there are exceptional circumstances. See section 151B of the Child Support (Assessment) Act 1989.

In all other cases, the Court 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 section 66L of the Family Law Act 1975.

More information

For more information, see the factsheet Child Support Applications.

Legal advice

For information on how to get legal advice, see Find a lawyer.

Practice directions

Practice directions are procedural guidelines issued by the Court. They complement legislation, rules and regulations. They provide specific direction about the practice and procedure that must be followed in certain types of proceedings.

Practice directions are issued by the Chief Justice/Chief Judge upon advice of judges of the Court, pursuant to the Court’s inherent power to control its own processes, as well as the power under the Federal Circuit and Family Court of Australia Act 2021 for the Court to give directions about the practice and procedure to be followed in a proceeding.

In general, practice directions are issued to:

complement particular legislative provisions or rules of court
set out more detailed procedures for particular types of proceedings, and
notify parties and their lawyers of matters which require their attention.

Below are links to the practice directions that apply to this area of law:

Family Law Practice Direction – Child support and child maintenance proceedings (FAM-CHILDSUPPORT)

Financial or property: Spousal maintenance

What are spousal and de facto maintenance?

Spousal maintenance

Spousal maintenance is financial support paid by a party to a marriage to their husband or wife (or former husband or wife) in circumstances where they are unable to adequately support themselves.

De facto maintenance

De facto 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.

The Court can only make a de facto maintenance order if your de facto relationship meets certain jurisdictional requirements.

When can I receive (or when do I have to pay) maintenance?

Under the Family Law Act 1975, a person has a responsibility to financially assist their spouse, or former de facto partner, if that person cannot meet their own reasonable expenses from their personal income or assets.

Where the need exists, both parties have an equal duty to support and maintain each other as far as they can. This obligation can continue even after separation and divorce. The extent of the support depends on what the other party can afford to pay.

What does the Court consider when making a decision?

The Court considers the needs of an applicant, and the respondent's capacity to pay.

The Court considers the following about both of you:

your age and health
your income, property, and financial resources
your ability to work
whether you have the care of a child of the relationship, including the need to provide appropriate housing for the child
the effect of any family violence
what is a suitable standard of living, and
if the marriage has affected your ability to earn an income.

The Court also takes into account with whom the children (under 18 years of age or adult children who are disabled) live.

See sections 75 (in relation to marriages) and 90SF (in relation to de facto relationships) of the Family Law Act 1975.

Do I still receive spousal maintenance if I start a new relationship?

You are not entitled to maintenance if you marry another person unless the Court otherwise orders. See sections 82 (in relation to spousal maintenance) and 90SJ (in relation to de facto maintenance) of the Family Law Act 1975.

If you start a new de facto relationship, the Court will take into account the financial relationship between you and your new de facto partner when considering whether you are able to support yourself adequately.

Are there time limits for applications for maintenance?

Spousal maintenance

We are not divorced

Divorce is a completely separate process to financial proceedings.

You can ask the Court to make an order for spousal maintenance even if you are not divorced. In fact, although it is uncommon, you can ask the Court to make a spousal maintenance order even if your marriage is still intact (i.e. if you and your spouse are not separated).

We are divorced

You can ask the Court to make an order for spousal maintenance after you are divorced, but you must apply within 12 months of the divorce order taking effect. If you want to start proceedings out of time, you must ask the Court for leave.

Our marriage was a nullity (we were not validly married)

If a court has made an order that your marriage was a nullity (the technical way of saying, that the marriage was void or that you were not validly married), you can still ask the Court to make an order for spousal maintenance, but you must apply within 12 months of the decree of nullity being made.

If you want to start proceedings out of time, you must ask the Court for leave.

De facto maintenance

You must apply de facto maintenance orders within two years of the breakdown of the de facto relationship. If you want to start proceedings out of time, you must ask the Court for leave.

I need maintenance

If you need an order for maintenance, see How do I apply for financial or property orders?

If you think you need a maintenance order urgently, you can apply for urgent maintenance. See sections 77 (in relation to urgent spousal maintenance) and 90SG (in relation to urgent de facto maintenance) of the Family Law Act 1975.

For information on how to apply for an urgent listing of your application, see My application is urgent.

Legal advice

For information on how to get legal advice, see Legal Help.

Financial or property: My case is in court

Before your court event you should see the Attending court section of this website. It provides information about etiquette and tips, different hearing types and attending electronic hearings (if your hearing is being conducted remotely).

There is also information about notifying the Court if you have any safety concerns or require any additional support to attend a hearing or court event.

You should bring with you all of the documents relevant to your matter, noting which ones have already been filed with the Court. Including:

all of the documents you wish to show the judge or registrar. Any photocopies to be provided should include three copies: one set for you, one set for the other party and another set for the judge or registrar, and
all documents the Court or the other party has given to you.
a pen and paper to take notes.

For more information, see the Attending court section.

You should also familiarise yourself with the Family Law Practice Direction – Financial or property proceedings, which sets out the procedural requirements and steps in proceedings about financial or property matters.

More information

For information on how to get legal advice, see Legal Help.

Financial or property: My application is urgent

You can ask the Court to list your application urgently by seeking an interlocutory order that the matter be given an urgent listing.

If you are seeking an urgent listing when you are first applying for financial or property orders, you should include the urgent application in the interlocutory orders sought in your Initiating application. If proceedings for financial or property orders have already been started, you need to make your urgent application by filing an Application in a proceeding.

Your Initiating Application will be allocated a hearing date when your application is accepted for filing, and your request for an urgent hearing will be considered by a registrar as a matter of priority. You will be advised of any change in the date or any additional steps you must take once the urgent application has been considered.

An urgent application must be accompanied by:

an Affidavit – Family law and child support stating the facts you rely on in support of the urgent application (if you are filing an Affidavit with your Initiating application in any event, you can address the urgency of your application in that affidavit; you do not need to file a separate affidavit about urgency), and
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 also refer to specific paragraphs of the affidavit on which you rely in support of the urgent application.

The Court may require to you to file the other documents set out at paragraph 2.5 of the Family Law Practice Direction: Financial or Property Proceedings at a future date.

You can ask the Court to consider an urgent application by seeking appropriately worded orders, and providing evidence in a supporting affidavit about why the Court should list the matter for an early hearing date, or make an urgent order. The Court will consider the application based on the evidence provided, and notify you of any further requirements or a listing date.

I want my application to be heard without notice to the other party

In extremely urgent situations, you can seek an urgent order to be made ex parte. This means the Court would deal with the matter immediately, and without notice to the other party.

Ex parte orders are usually only granted in matters where you can substantiate urgency by seeking appropriately worded urgent orders in the application. You will need to explain the grounds on which you are seeking urgent orders in your supporting affidavit.

When applying for ex parte orders, you must comply with rule 5.11 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. See also paragraph 2.16 of Family Law Practice Direction: Financial or Property Proceedings.

Legal advice

Practice directions

In general, practice directions are issued to:

complement particular legislative provisions or rules of court
set out more detailed procedures for particular types of proceedings, and
notify parties and their lawyers of matters which require their attention.

Below are links to the practice directions that apply to this area of law:

Family Law Practice Direction – Financial or property proceedings (FAM-FINANCIAL)

Financial or property: I have been served

If you have been served with an application for financial or property orders, this means your former partner has applied to the Court to start financial or property proceedings. They are known as the applicant and you (as the other party) are known as the respondent.

Unless an exemption applies you should have been approached by the applicant to participate in dispute resolution and pre-action procedures. For more information about compliance with pre-action procedures in financial or property matters see the prescribed brochure.

You should read the documents as soon as possible. You should also refer to the Family Law Practice Direction – Financial or property proceedings, which sets out the procedural requirements and steps in proceedings about financial or property matters.

How do I respond?

If you are the respondent in the proceedings (i.e. you did not start the proceedings)

If you have been served with an Initiating Application filed by another person (the applicant), you will need to respond. To respond, you must pay the relevant fee and file:

a Response to Initiating Application setting out which of the orders sought by the applicant you agree with (if any), and the orders you are asking the Court to make
a Financial Statement (unless you object to the Court’s jurisdiction);
a Genuine Steps Certificate
a Financial Questionnaire, unless you file an affidavit, and
if the applicant has asked the Court to make interlocutory orders, and/or you are asking the Court to make interlocutory orders, an Affidavit – Family law and child support in which you set out the facts in support of your application for interlocutory orders, and otherwise respond to facts asserted by the applicant in their affidavit.

Once filed, you must serve all documents on the applicant.

Filing a response means you are in the same position as the applicant. You are not at a disadvantage just because the other party started the case first.

If you are the applicant in the proceedings (i.e. you started the proceedings)

If you filed an Initiating Application in which you did not ask the Court to make financial or property orders, but the other party asked the Court to make financial or property orders in their Response, you will need to respond to the application for financial or property orders.

You can do so by:

either:
1. amending your Initiating Application to seek financial orders, or
2. filing a Reply, and
a Financial Statement (unless you object to the Court’s jurisdiction)
a Genuine Steps Certificate
a Financial Questionnaire, unless you file an affidavit, and
if the other party has asked the Court to make interlocutory orders, and/or you are asking the Court to make interlocutory orders, an Affidavit – Family law and child support in which you set out the facts in support of your application for interlocutory orders, and otherwise respond to facts asserted by the applicant in their affidavit.

A further filing fee will apply to the amended Initiating Application or Reply.

What do I need to pay?

Fees may apply when filing a Response to Initiating Application, Reply or amending an Initiating Application. The fees vary, depending on the types of orders you are asking the Court to make. Other fees may also apply during the course of your proceedings.

For the current fees, see fees.

In some cases, such as if you hold certain government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee or fee exemption. For more information see Guidelines for exemption of court fees.

The Court does not set the fees payable. Court fees are set by Federal Government Regulations.

Filing with the Court

Applications, responses and replies, should be eFiled online through the Commonwealth Courts Portal. For more information about eFiling and a step-by-step guide see How do I eFile?.

Service

After you have filed your documents, you need to serve them on the other party.

For information on what you need to do to serve your documents, see the Service Kit and the step-by-step guide How do I serve family law documents?.

Legal advice

For information on how to get legal advice, see Legal Help.

Practice directions

In general, practice directions are issued to:

complement particular legislative provisions or rules of court
set out more detailed procedures for particular types of proceedings, and
notify parties and their lawyers of matters which require their attention.

Below are links to the practice directions that apply to this area of law:

Family Law Practice Direction – Financial or property proceedings (FAM-FINANCIAL)

Financial or property: We cannot agree

If you and the other party (usually your former spouse or former de facto partner) cannot agree over financial or property matters, after attempting other dispute resolution or mediation, you can apply to the Court for orders.

Limitation periods (time limits)

Limitation periods (time limits for applying to the Court) apply to most financial or property proceedings. The relevant time limit depends on whether the potential proceedings arise out of a marriage or a de facto relationship.

If the potential proceedings arise out of a marriage, you must apply within 12 months of a divorce order taking effect (or decree of nullity being made) in relation to the marriage.
If the potential proceedings arise out of a de facto relationship, you must apply within two years of the breakdown of a de facto relationship.

These limitation periods do not apply to applications which seek only

declarations of existing property interests, or
to vary, set aside or revive existing property settlement or maintenance orders.

If you want to start financial or property proceedings out of time, you must ask the Court for leave to apply out of time, by seeking an interlocutory order, together with an Affidavit – Family law and child support stating the facts relied on in support of the application for leave (see How do I apply for financial or property orders?).

Before you apply

Compulsory pre-action procedures

Before you apply to the Court for financial or property orders, you have to comply with pre-action procedures, unless an exemption applies.

The pre-action procedures also apply to potential respondents. This means that, if the other party (usually your former spouse or former de facto partner) contacts you about financial or property matters arising out of the marriage or de facto relationship, you have to comply with pre-action procedures, unless an exemption applies.

The aim of the pre-action procedures is to see whether the dispute as a whole, or at least parts of the dispute, can be resolved by agreement. This should reduce costs and if possible, resolve disputes quickly, ideally without the need to apply to the Court.

What is required?

The Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Rules) require prospective parties to genuinely try to resolve their dispute before starting a case. Unless an exemption applies, you must:

Participate in dispute resolution services, such as Family Dispute Resolution counselling, negotiation, mediation, conciliation or arbitration.
If dispute resolution is unsuccessful, write to the other party (or parties), setting out your claim, and exploring options for settlement.
Comply, as far as practicable, with the duty of disclosure.

Duty to make full and frank disclosure

Parties to a case have a duty to make timely, full, and frank disclosure of all information relevant to the issues in dispute. There may be serious consequences for failing to disclose, including punishment for contempt of court.

In summary, parties should promptly exchange copies of documents in their possession or control relevant to an issue in the dispute before as well as after starting a case. Examples of documents may include:

a schedule of assets, income and liabilities
a list of documents in the party’s possession or control that are relevant to the dispute, and
a copy of any document required by the other party, identified by reference to the list of documents.

In particular, parties are encouraged to refer to the Financial Statement, sections 71B or 90RI of the Family Law Act, and rules 6.03, 6.05, and 6.06 as a guide to what information to provide and documents to exchange.

Rules 6.14 and 6.15 sets out documents that do not need to be produced. These include documents where there is a claim for privilege from disclosure or documents that have already been disclosed, and where there has been no change likely to affect the result of the case.

The documents that the Court would consider as appropriate to be exchanged include:

In a spousal or de facto maintenance case

the party’s taxation return and Notice of Assessment for the most recent financial year
the party’s bank records for the previous 12 months
if the party receives wage or salary payments, the party’s most recent pay slip
if the party has an Australian Business Number, copies of the last four business activity statements lodged, and
any other document relevant to determining the income, expenses, assets, liabilities and financial resources of the party.

In a property settlement case

the party’s three most recent taxation returns and Notices of Assessment
documents about any relevant superannuation interest, including:
- the completed Superannuation Information Form
- for a self-managed superannuation fund, the trust deed and the last three financial statements, and
- the value of the superannuation interest, including how the value has been calculated and any documents working out the value
if the party has an Australian Business Number, the last four business activity statements lodged
for a corporation (business), trust or partnership in which the party has an interest, copies of the three most recent financial statements (including balance sheets, profit and loss accounts, depreciation schedules and taxation returns) and the last four business activity statements lodged by each corporation, trust or partnership
for any corporation, its most recent annual return, listing directors and shareholders and the corporation’s constitution
for any trust, the trust deed
for any partnership, the partnership agreement, including amendments, and
unless the value is agreed, a market appraisal of any item of property in which a party has an interest.

Where a party is unable to produce a document for inspection, it is reasonable for the party to be required to provide written authority authorising a third party (for example, an accountant) to provide a copy of the document to the other party, where this is practicable.

Parties should agree to a reasonable place and time for the documents to be inspected and copied at the cost of the person requesting the copies.

Parties must not use a document disclosed by another party for any purpose other than to resolve or determine the dispute for which it was disclosed. That is, in seeking the documents through the pre-action procedures, the party receiving them is considered by the Court to have given an undertaking that they will be used for the specific purposes of the case only.

Where there are disagreements about disclosure, it may be appropriate for an application to be filed with the Court.

What if someone does not comply?

Anyone who fails to comply with the compulsory pre-action procedures (in circumstances where no exemption applies) risks serious consequences, including costs penalties. The Court may:

where there is unreasonable non-compliance, order the non-complying party to pay all or part of the costs of the other party or parties in the case, and/or
take compliance or non-compliance into account when making orders about how your case will progress through the Court.

In addition, the Court may ensure that the complying party is in no worse a position than they would have been if the other party had complied with the pre-action procedures.
Examples of non-compliance with a pre-action procedure include:

not sending a written notice of proposed application
not providing sufficient information or documents to the other party
not following a procedure required by the pre-action procedure
not responding appropriately within the nominated time to the written notice of proposed application, and
not responding appropriately within a reasonable time to any reasonable request for information, documents or other requirements of this procedure.

What are the exemptions?

You are exempt from the compulsory pre-action procedures for financial cases if one of the following applies:

the proceeding involves allegations of family violence, or a risk of family violence
the application is urgent
you would be unduly prejudiced (in other words, your case would be unfairly affected) if you were required to comply with the pre-action procedures
there has been a previous application in the same cause of action in the same 12 months immediately before the start of the proceeding
the proceeding is a child support application or appeal, or
the proceeding involves a court’s jurisdiction in bankruptcy.

See rule 4.01(2).

More information

For further details about pre-action procedures in financial or property cases, including a step-by-step guide, read the fact sheet Before you file – pre-action procedure for financial or property cases.

How to apply

If you have not been able to reach an agreement after dispute resolution, you can make an application to the Court for orders. Before starting an application, see the Family Law Practice Direction – Financial or property proceedings, which sets out the procedural requirements and steps in proceedings about financial or property matters.

For information about filing requirements and a step-by-step guide to applying for financial or property orders see How do I apply for financial or property orders?

NOTE: You may meet the criteria for Priority Property Pool Cases (PPP Cases) if:

you are seeking financial or property orders only, and
the net value of the property of the parties (excluding superannuation interests) is, or is likely to be, less than $550,000, or
the net value of the property of the parties (excluding superannuation interests) is not significantly greater than $550,000 and the Court, in its discretion, makes a declaration or notation that the proceeding is designated as a PPP Case.

PPP Cases have a streamlined case management pathway that aims to find the simplest, quickest, and most cost-effective process to finalise the case. For more information about the criteria and filing requirements for PPP Cases see, Priority Property Pool Cases.

New proceedings

If you are starting new court proceedings, you need to decide whether to ask the Court to make only final orders, or final and interlocutory orders.

To start court proceedings, you must pay the relevant fee and file:

an Initiating Application (Family Law) setting out the orders you are asking the Court to make
a Financial Statement
a Genuine Steps Certificate
if you are asking the Court to make interlocutory orders, an Affidavit – Family law and child support in which you set out the facts in support of your application for interlocutory orders
if you are not seeking interlocutory orders and not filing an affidavit, a Financial Questionnaire.

If you start proceedings, you are known as the applicant and the other party is known as the respondent.

TIP: If you also need to make arrangements for children, you can apply for parenting orders and financial or property orders together in the same application. See Children – We cannot agree for more information.

When there are already proceedings about children

If you are already a party to court proceedings about parenting orders in which nobody has applied for financial or property orders, you can add an application for financial or property orders to the existing proceedings.

If you are in the applicant in the existing proceedings, you can apply for financial or property orders by amending your Initiating Application (Family Law) to seek those orders. The requirements for amending a document are set out in Part 2.8 of the Rules. A further filing fee will apply. You must also file all of the documents which are required to be filed when starting new proceedings for financial or property orders, except the Initiating Application (Family Law).

If you are the respondent in the existing proceedings, you can seek financial or property orders in your Response to Initiating Application, even if the applicant only applied for parenting orders. In addition to the documents that you must file when responding to an application for parenting orders, you must file all of the documents which are required to be filed when starting new proceedings for financial or property orders, except the Initiating Application (Family Law).

If you have already filed a response, you can apply for financial or property orders by amending your Response to seek those orders. The requirements for amending a document are set out in Part 2.8 of the Rules. A further filing fee will apply.

TIP: While you can add an application for financial or property orders to existing parenting proceedings, you cannot add an application for financial or property orders (or an application for parenting orders) to divorce proceedings. Divorce is a separate process.

What do I need to pay?

Fees apply when filing an Initiating Application (Family Law) or Response to Initiating Application. The fees vary, depending on the types of orders you are asking the Court to make. Other fees may also apply during the course of your proceedings.

For the current fees, see Fees.

The Court does not set the fees payable. Court fees are set by Federal Government Regulations.

Filing with the Court

Applications to the Court, should be eFiled online through the Commonwealth Courts Portal.

For more information about filing requirements and a step-by-step guide to applying for financial or property orders see How do I apply for financial or property orders?

My matter is urgent

See My application is urgent.

Service

After you have filed your documents, you need to serve them on the other party.

For information on what you need to do to serve your documents, see the Service Kit and the step-by-step guide How do I serve family law documents?.

Legal advice

For information on how to get legal advice, see Legal Help.

Financial or property: We have agreed

If you and your former partner have reached an agreement about dividing your property and finances, you do not need to go to court.

However, you should formally document your agreement, to make sure that you each understand what you have agreed, and to help you to avoid any disputes or misunderstandings in the future. There are two ways in which you can document your agreement in accordance with the Family Law Act 1975:

consent orders, and
a Financial Agreement.

Consent orders

Consent orders are proposed orders which you and the other party agree on and ask the Court to formalise as court orders. You and the other party can apply for consent orders to be made without going to court.

You should seek legal advice before entering into consent orders.

Disclosure

The Application for Consent Orders requires each party to make full disclosure of their respective financial circumstances – i.e. each party has to set out their financial circumstances, and sign a statement confirming that what they have set out is true and correct.

Each party should satisfy themselves that what the other party has disclosed is accurate, by for example, exchanging documents verifying what has been disclosed, such as taxation returns, pay slips, bank statements, superannuation statements, and the like.

Agreement of every person affected by the orders

The Court can only make consent orders if every person who is required to do something under those orders has agreed to them.

This includes the trustee of a party’s superannuation fund, if the proposed consent orders include a superannuation splitting order.

Consent orders are legally binding

Even though consent orders are made by agreement, and can be made without a hearing, they are still orders of the Court, and are legally binding.

When a financial order is made, each party to the order must follow it. Breaching an order can have serious consequences, including being found in contempt of court in extreme cases.

Orders can only be changed in limited circumstances

Once final financial or property orders are made, including consent orders, there are only limited circumstances in which they can be changed in the future (see sections 79A and 90SN of the Family Law Act 1975).

How to apply for consent orders

For information about filing requirements and a step-by-step guide to applying for consent orders see How do I apply for consent orders?

You and the other party apply together for consent orders by filing:

an Application for Consent Orders, and
a copy of the proposed consent orders attached to it.

TIP: If you have also agreed on arrangements for children, you can apply for consent parenting and financial or property orders together in the same application. See Children – We have agreed for more information.

Financial Agreements

A Financial Agreement is a contract between two or more parties made under Part VIIIA (for marriages) or Division 4 of Part VIIIAB (for de facto relationships) of the Family Law Act 1975.

You cannot enter into a Financial Agreement without first getting legal advice from an Australian lawyer.

For more information, see Financial Agreements.

More information

The Attorney-General's Department guide Property and Financial Agreements and Consent Orders – What You Need To Know, provides information to separating couples about the options for resolving property arrangements, from an informal agreement through to filing consent orders with the Court and litigating the matter in court.

Legal advice

You are not required to be represented by a lawyer, or to seek legal advice, before entering into consent orders. However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.

For information on how to get legal advice, see Legal Help.

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