The court can make consent orders and financial orders.
When making these orders, the court will consider what is a fair division of property. The court does not consider who is ‘at fault’ in a relationship breakdown.
Consent orders can cover:
Changing or cancelling consent orders
To ‘set aside’ (cancel) consent orders in property disputes you need to prove that:
- there was ‘fraud’ (dishonesty)
- the orders are not practical to carry out (not just inconvenient)
- there is a major change in the care and welfare of your child or children that was unforeseen at the time of signing the agreement
- the other person has acted in an ‘unconscionable’ (unethical or unfair) way
- the other person has failed to comply with an obligation under the order
- the property is confiscated (seized) by the government because it was gained through criminal activity.
In a financial order, a court can order a person to:
- pay money to another person by a certain time
- transfer or sell property
- split superannuation
- sign documents
When a financial order is made, each person listed in the order must follow it.
If there is no agreement about who gets the family home, the court often orders that it be sold and the sale money divided on a percentage basis. This does not mean that the money will be divided equally. There is no automatic 50/50 split of property. Every case is different.
The court will make financial orders based on what is fair to both people. They will look at contributions made during the relationship and the future needs of both people.
The four-step process
The court applies a four-step process to work out what is fair.
- Consider whether it is just and equitable (fair) to divide property.
- Identify and value the property to work out how much there is. Property can include things you got before your relationship started or after you separated.
- Consider the contributions made by both sides, including financial contributions such as earnings, savings, gifts, inheritances and home improvements, and non-financial contributions such as being a homemaker and care provider for children.
- Consider other factors set out by law, including:
- how much each person could earn in future
- the age and health of each person
- the care and financial support of children
- responsibility for supporting other people
- length of relationship.
There are time limits for going to court for a consent order or a financial order.
You must apply for a court order:
- within one year from the date of your annulment
- within one year from the date your is final
- within two years from the date your de facto relationship ended.
Get legal advice
It is very important not to enter into a property agreement without legal advice. Every case is different. A can help you understand your legal rights and responsibilities, and explain how the law applies to your situation. A lawyer can also help you work out an agreement.
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
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Reviewed 12 April 2022