NOTE: You can apply for property/financial and parenting orders in the same application. See the fact sheet Applying to the court for orders and How do I apply for parenting orders? for more information.
What is a property/financial order?
A financial order is a set of orders made by a court relating to the division of property and can include orders for payment of spouse or de facto partner maintenance. A 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 Complying with financial orders.
The Family Law Act 1975 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).
See Property & finance for more information.
Seeking legal advice
It is important to obtain some independent legal advice in relation to your situation. 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 because 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.
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 (+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. FRAL will advise you of a timeframe on the call back, you should advise if it is urgent.
Alternatively, the Australian government funds a range of legal assistance services that may be able to assist you, including Legal Aid Commissions and individual Community Legal Centres, which offer free and low cost advice. Information to assist with finding legal services is available from the Attorney-General's Department website.
Pre-filing procedures in property and financial matters
In the Federal Circuit Court of Australia, parties intending to apply for financial orders should make a genuine effort to resolve the matter by family dispute resolution, before filing an application.
An application can be filed any time after separation but should be filed within 12 months of a divorce or two years of the breakdown of a de facto relationship (s44 of FLA) if parties wish to seek orders from the Court. Otherwise, you will need to ask the Court for permission to file your application. You can do this by seeking leave to file the application for property or maintenance orders as one of the final orders sought.
If you agree about property and financial arrangements
If all parties have reached agreement and want to formalise the agreement to make it legally binding they can apply to the Family Court of Australia 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 If you agree about property and finance.
If you do not agree about property and financial arrangements
If there is no agreement and your application will be for determination by the Court, then one party can start court proceedings by filing an Initiating Application to ask the Federal Circuit Court of Australia or the Family Court of Australia to make orders. See the Protocol for the division of work between the Family Court and the Federal Circuit Court for information about which court you should file your application in.
For information about filing an application see Filing an application with the Court below.
Types of property and financial matters
Select the relevant type of property/financial matter/s 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 de facto relationships section of this website.
Helpful hint: De facto couples should also refer to the legislation: Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008 and the fact sheet Applying to the Court for orders.
See Spousal maintenance below 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 cannot eFile this application 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. See Property division when de facto relationships break down - new Commonwealth law for separating de facto couples. This fact sheet will give you information about whether or not you are eligible to make such an application.
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 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 cannot eFile this particular type of application on the Commonwealth Courts Portal. There is no filing fee payable for this type of application.
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 Property & Finance - 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. The Department of Human Services (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. These applications are generally dealt with by the Federal Circuit Court. You should seek legal advice or contact the Department of Human Services (Child Support) on 131 272 before making an application in the Court.
See Property & Finance – Child Support and the brochure Child Support Applications for more information about what type of child support applications and appeals can be filed in the Federal Circuit Court.
NOTE: you cannot eFile this particular type of application 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 Complying with financial orders 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.
The law on enforcement of orders is complicated. You should get legal advice before starting any proceedings to enforce a court order.
If you are owed money, for example under a court order, you can seek that the property of the person who owes you the money be sold to pay the debt. You can apply for an enforcement warrant by filing an Enforcement Warrant – Seizure & Sale of Property, and an Affidavit, complying with Rules 25B.12 and 2.01 of the Federal Circuit Court Rules.
Orders can be made requiring a person to comply with an obligation, an enforcement warrant issue, third party debt notice issue, varying an enforcement order, appointing a person to receive income and pay debts. You can apply for an enforcement hearing by filing an Application in a Case, and an Affidavit, complying with Rules 25B.12 and 2.01 of the Federal Circuit Court Rules (in most cases this cannot be eFiled).
When you are owed an amount of money under an order, some agreements or a child support liability you may be able to apply to have a person or organisation to pay money e.g. from wages by filing a Third Party Debt Notice and an Affidavit. Part 25B.07 of the Federal Circuit Court Rules, specify in detail the debts that can be enforced.
This application is used when you are alleging a breach of a property order under Part XIII of the Family Law Act 1975. Before filing an Application - Contravention you should consider the result that you want to achieve and obtain legal advice. The remedies available from the Court range from the enforcement of the order to the punishment of a person for failure to obey an order. See Complying with financial orders for more information. For details on what you need to file see Application - Contravention.
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.
See Bankruptcy in family law matters for more information.
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.
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 to the Family Court of Australia for consent orders. See How do I apply for Consent orders for more information.
Helpful hint - For more information about eFiling applications on the Commonwealth Courts Portal see How do I eFile?
The Court recommends 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 are applying for a fee exemption due to financial hardship,
- you are seeking parenting orders and an exemption from providing a section 60I dispute resolution certificate is sought.
- you do not have access to the required technology,
- you are unable to pay by credit/debit card online (see Helpful Hint below), or
- your application is urgent.
When seeking financial orders, you need to eFile an initiating application, with supporting documents and pay the filing fee (see below):
- An Initiating Application (eFile using the online interactive form within the portal) if you are commencing a case,
- A supporting Affidavit. For more information see Preparing an affidavit.
- A Financial Statement.
- A Superannuation information kit (only required if seeking a splitting/ flagging order - can be ordered if further information is required). You must provide a valuation and evidence that procedural fairness has been provided to the relevant superannuation trustee.
- For cases that include parenting matters as well, you will also need:
- A Notice of Risk (this is a mandatory form which must be filed with any applicaiton seeking parenting orders — note if you eFile, this is part of the online form).
- A certificate from a Family Dispute Resolution practitioner unless one of the exceptions outlined in the brochure Compulsory Family Dispute Resolution – court procedures and requirements applies. If one of the exceptions applies, you will need to file an Affidavit – Non-Filing of Family Dispute Resolution Certificate. Note: dispute resolution certificates are valid for 12 months from the latest family dispute resolution or attempted resolution.
There are some specific applications which require different documents; for example, Enforcement and Contravention (see Contravention or enforcement of financial
NOTE: property/financial and parenting orders can be sought in the same Initiating Application.
If for any reason you cannot eFile the application click on More information below.
Follow the instructions on the Initiating Application Kit or Application in a Case and file it and the supporting Affidavit, Financial Statement, Superannuation information kit (if required), and a Notice of Risk and a certificate from a Family Dispute Resolution practitioner (if seeking parenting orders) at a family law registry. You should have all your documents signed, witnessed (if required) and photocopied before you file.
Helpful Hint: Did you know that you can purchase a reloadable prepaid Visa debit card from the post office for $6.95.
You will be required to pay a filing fee unless you are eligible for an exemption. Refer to the Guidelines for fee exemption, reduction, deferral and refund to find out if you are eligible.
Apply for financial orders only – $345 (or $0 if eligible for an exemption).
Apply for final and interim financial orders – $465* (or $0 if eligible for an exemption).
Apply for final parenting and financial orders – $565 (or $0 if eligible for an exemption).
Apply for final and interim parenting and financial orders – $685* (or $0 if eligible for an exemption).
If you are eligible for an exemption of fee — general, you should complete the Application for exemption from fees — general and attach a photocopy of documentary evidence (both sides).
Helpful hint - If you are eligible for an exemption of fee — general you can complete the online interactive applications within the portal.
If you are not eligible, but payment of the fee will cause you financial hardship you can complete the Application for exemption from fees — financial hardship. Your application will then be considered by the court. For further information, see the publication Guidelines for exemption of court fees.
Note: If you are applying for an exemption of fee due to financial hardship you cannot eFile your application.
If you have eFiled your application you will be required to pay the filing fee by credit/debit card (visa/mastercard) when you complete the online interactive application. If you file your application by post or in person go to Making payments to the courts for more information.
Helpful Hint: Did you know that you can purchase a reloadable prepaid Visa debit card from the post office for a norminal fee?
What will happen after I have filed the application?
If you have eFiled an Initiating Application you will be able to select the court date. If you have filed your application at a registry, the Court will allocate a court date.You are then required to serve the filed documents on the other parties. See How do I serve family law documents for more information.
If you eFiled the application, you should print a sealed copy of the application so you can serve the respondent. To print the application you should go to Documents filed and click on to print a copy for service.
If you filed an Initiating Application at a registry, sealed copies will be returned to you for service.
You can ask the Court to consider an urgent application by seeking appropriately worded orders and providing evidence in a supporting affidavit 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. You cannot eFile an urgent application.
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. Refer to Part 5 of the Federal Circuit Court Rules 2001. In addition, you should also include a cover letter stating the urgency. State courts also have a limited jurisdiction under the Family Law Act 1975, you should check with your local state court as to whether they have the jurisdiction to hear and determine your type of application. For example, an urgent application may be heard in a state court in country locations where no other service is available.