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:

1. 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
2. a Financial Statement (unless you object to the Court’s jurisdiction);
3. a Genuine Steps Certificate
4. a Financial Questionnaire, unless you file an affidavit, and
5. 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:

1. either:
   
   1. amending your Initiating Application to seek financial orders, or
   2. filing a Reply, and
2. a Financial Statement (unless you object to the Court’s jurisdiction)
3. a Genuine Steps Certificate
4. a Financial Questionnaire, unless you file an affidavit, and
5. 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

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.

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 – Financial or property proceedings (FAM-FINANCIAL)

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:

1. an Initiating Application (Family Law) setting out the orders you are asking the Court to make
2. a Financial Statement
3. a Genuine Steps Certificate
4. 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
5.  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.

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.

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.

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 the Guidelines for fee exemption, reduction and refund.

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

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.

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.

Read more about compliance with, and enforcement of, financial or property orders.

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.

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 A guide to dividing your property and finances after separation , 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.

When people separate (whether from a marriage or a de facto relationship), they usually need to sort out how to divide their property and debts.

One person may also need financial support from the other, either for themselves in the form of spousal or de facto maintenance (which can arise out of both a marriage or a de facto relationship), or for their child or children, in the form of child support or child maintenance.

If it is safe to do so, it is generally best if you can reach your own agreement with your former spouse or partner. Making your own agreement will save you both money, time and stress. For more information about ways you may be able to reach an agreement without the need for Court action, see Separate smarter.

There are various ways you can make arrangements to divide your finances after separation:

• If you agree on arrangements, you can seek to formalise your agreement by applying for consent orders or making a financial agreement.
• If you cannot agree on some issues, you can use dispute resolution or mediation to help you resolve any issue in dispute.
• If you cannot reach an agreement after dispute resolution, you can apply to the Court for financial or property orders, including orders relating to the division of property and payment of spouse or de facto partner maintenance.

The following guides from the Attorney-General's Department provide information about finances and debt after separation:

• A guide to dividing your property and finances after separation
  This guide provides information to separating couples about the options for resolving property, financial and superannuation arrangements, from an informal agreement through to filing consent orders with the Court and litigating the matter in court.
• Separating with debt: a guide to your legal options
  This guide provides family law and consumer credit law information, options and referral points to assist separating couples to proactively manage debt in the context of relationship breakdown.

When can the Court make financial or property orders?

Marriage

The Court has power to make financial or property orders in relation to marriages (including void marriages) under Part VIII of the Family Law Act 1975 .

You can ask the Court to make orders for property settlement or maintenance arising out of a marriage even if you are not yet divorced.

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 financial or property orders arising out of that void marriage.

De facto relationship

A de facto relationship is defined in section 4AA of the Family Law Act 1975 . The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a genuine domestic basis.

Before the Court can determine your financial dispute, you must satisfy the Court that you were in a genuine de facto relationship with your former partner which has broken down, and that you:

• have a geographical connection to a participating jurisdiction (which includes each Australian state and territory except Western Australia), and
• meet at least one of the following criteria:
  • the period for the de facto relationship was at least two years, and/or
  • there is a child in the de facto relationship, and/or
  • the relationship is or was registered under a prescribed law of a state or territory, and/or
  • one party made significant contributions to the property of the other, and the failure to make an order would result in a serious injustice.

Your relationship is not a de facto relationship if you were legally married to one another or if you are related by family.

You should obtain legal advice about whether your circumstances satisfy the criteria before filing an application.

Time limits

Different time limits apply for making an application to the Court for financial or property orders depending on your individual situation.

• If you were married, applications for property adjustment must be made within 12 months of your divorce becoming final.
• If your marriage was declared nullity, your financial or property applications must be made within 12 months of your decree of nullity being made.
• If you were in a de facto relationship, your applications for property adjustment must be made within two years of the breakdown of your de facto relationship.

If you want to start proceedings out of time, you must ask the Court for leave. This is not always granted.

Time limits do not apply to child support and child maintenance.

Considerations in financial matters

There are a number of things you may need to consider when making financial arrangements after separation and before making an application to the Court.

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 you are formalising your financial arrangements. However, it is not mandatory to adjust superannuation interests. For more information, see superannuation.

Bankruptcy

The Court can deal with the bankruptcy of a party to a marriage or de facto relationship involved in certain family law proceedings. For more information, see bankruptcy.

Financial support for myself (spousal or de facto maintenance)

For information about whether you can get orders requiring your spouse or de facto partner to financially support you, see spousal and de facto maintenance.

Financial support for my child (child support and child maintenance)

For information about getting financial support for your child and children, see child support and child maintenance.

Death of your former spouse or de facto partner

The Court only has jurisdiction to make financial orders if, at the time when the application was filed, both parties to the relevant marriage or de facto relationship were alive. For more information see, death of a party.

Pets

Whilst a pet may be a part of your family, for the purposes of family law proceedings they are classed as property. The Court can only make certain orders about pets (companion animals) and must consider a specific list of matters to decide who will have ownership of the pet. Importantly orders cannot be made for shared or joint ownership arrangements. For more information see: Family pets.

How does the Court decide financial or property cases?

There is no formula used to divide your property and finances. No one can tell you exactly what orders a judicial officer will make, but an experienced family lawyer can, in many cases, predict a range of outcomes based on a given fact scenario. If you are not able to reach an agreement at dispute resolution, your matter may progress to a hearing.

The decision is made after all the evidence is heard and the judicial officer decides what is just and equitable (fair according to the law) based on the unique facts of your case.

The Family Law Act 1975 sets out the general principles which the Court considers when deciding property settlement cases (see sections 79(4), 79(5) and 75(2) in relation to marriages, and sections 90SM(4), 90SM(5) and 90SF(3) in relation to de facto relationships).

The general principles are the same, regardless of whether the parties were in a marriage or a de facto relationship, and are based on:

• the assets and liabilities of you and the other party individually and jointly (i.e. what you own, and what you owe), and what they are worth
• direct financial contributions by each party, such as property you each had when you began to live together, and your wage and salary earnings while you lived together
• indirect financial contributions by each party, such as gifts and inheritances from family members
• non-financial contributions to property, such as renovations to a home, management of investments, or running a business
• contributions to the welfare of the family, such as caring for children and doing housework
• the effect of any family violence on a party’s ability to make financial or non-financial contributions (i.e. the economic effect of any family violence), and
• each party’s future needs – a court will take into account things like age, health, financial resources, care of children, including housing, the effect of any family violence and ability to earn an income.

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.

NOTE: You may meet the criteria for Priority Property Pool Cases (PPP Cases) if you are seeking financial orders only, and the net value of the property (excluding superannuation interests) is, or is likely to be, less than $550,000. PPP Cases aim to find the simplest, quickest, and most cost-effective process to finalise the case. For more information see, Priority Property Pool Cases.

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.