Property 101: WA's property dividing laws for married couples

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After you separate from your spouse, you will likely need to make arrangements to divide your property and separate your finances.

You can begin working out a property settlement any time after you separate from your spouse. You do not need to wait until your divorce comes through.

Even if all the property is in the other person’s name, or you did not make direct financial contributions to property (such as paying the mortgage), you will usually still be entitled to a property settlement according to the four-step process used by the Family Court. 

How do we go about dividing property?

You should first try to reach an agreement with your former partner about financial issues. You could attempt property settlement through Family dispute resolution or other non-court based dispute resolution methods. Often this will resolve the matter without the need to go to court. For more information, see Other ways to resolve a family law dispute. Sometimes it will not be safe for you to negotiate directly with the other person (for example, where there has been family violence). For more information, see Family violence and family law.

If you are unable to come to an agreement with your former partner, you may need to ask the Family Court to make a decision for you. There are certain steps you must take before you commence proceedings for property settlement in the Family Court.

How do we know what our property is worth?

If you want to find out about how much your property is worth, you can try the following:

• For houses – ask three or more real estate agents to give you a valuation of your house. They will provide these free of charge. Ask that they put down what they think the house would actually sell for, as some agents will give the best possible price rather than the more likely price to try to secure your business. You can then take an average of the estimates to use in working out your property settlement. If this method does not produce a result you can agree on, you can consider having a certified valuer visit the property. They will give a sworn valuation of your house for a fee. You can find the name of a certified valuer by asking a real estate agent or looking in the Yellow Pages.
• For cars/boats/bikes you can use a website such as RedBook as a starting point and look at local advertisements for similar items (as RedBook is based in Victoria values may differ slightly in Western Australia). If these values cannot be agreed, you can obtain a sworn valuation from an expert.
• Get printouts from your bank and superannuation fund of your current balances.
• For other items such as tools, trailers and so on you can try looking at local advertisements for similar items, and if the values cannot be agreed you can seek a sworn valuation from an expert with the knowledge, skills and experience to value the particular item.
• If there is a business involved, you may know and be able to agree upon its value. If not, you can seek a sworn valuation from an expert licensed to value businesses. 

Expert valuers for different types of property can be found in the Yellow Pages.

There are no set rules about how things must be valued. When working out a property settlement with your former partner you can agree to value property as you both see fit. For example, while your household contents may only be “worth” a certain amount if you were to sell it, you might choose to think of its value as the cost it would take one person to set up a new residence with furniture and whitegoods. 

You may decide not to have your property valued at all during the process and choose to take a more practical approach. For example, you may decide that regardless of the exact value of your home, you would prefer your children be able to stay in the family home and that it not have to be sold to give you what you think you might be entitled to in a property settlement. Another example might be if you purchased most of your furniture together, you might each take turns picking an item of furniture to keep – that way you can take into account sentimental value as well as monetary value.

How can we formalise an agreement about property?

Consent orders

While it is not compulsory to formalise your agreement about property, it is recommended that you formalise your agreement about property by obtaining consent orders from the Family Court. Having court orders can assist you in dealing with organisations such as banks and can help prevent the people involved from making claims against each other’s property in the future. For more information on consent orders and how to obtain consent orders through the Family Court, see the Family Court of WA Consent Orders Kit, available from the Family Court of WA website or by calling the court registry on (08) 9224 8222 or 1800 199 228 (country areas free call) and requesting that a copy of the Kit be sent to you.

You should get legal advice about your particular circumstances prior to signing any final agreement. 

Binding financial agreements

A binding financial agreement is like a contract between the parties that can deal with how property will be divided if a relationship breaks down. Binding financial agreements may also allow for spousal maintenance to be paid if a relationship ends. The agreement can be made before, during or after a marriage or de facto relationship. Binding financial agreements can only be set aside in very limited circumstances. If you are thinking about making a binding financial agreement you should get legal advice.

How does the Family Court decide who should get what?

For information about how the Family Court decides, see How does the Family Court deal with a property case. You do not necessarily need to follow the approach taken by the Family Court to determine your own private property settlement, but as the process was designed to try to come up with a fair outcome, you may wish to use it as a guide.

Are there any time limits?

Yes. If you were married you have 12 months from the date your divorce becomes final to commence property settlement proceedings in the Family Court. You can get a property settlement before you are divorced.

Although you can work out a property settlement almost any time after separation (as the time limitation period does not start until your divorce is finalised), it is recommended to sort out arrangements as soon as possible. This is because asset values can change over time and valuations are best done close to when the parties separate.

Is superannuation included in property?

Superannuation may be included in a property settlement for people who were married. It is possible for superannuation to be:

• split and transferred from one person to the other (called a "splitting order") 
• given to the one person when the other person retires and receives their superannuation payment (called a "flagging order") 
• used as an "offset" meaning if one person keeps their superannuation the other person will receive more out of the other available property 
• included in a financial agreement 
• valued as property

I am worried my former partner will get rid of assets, what can I do?

If you are worried your former partner may get rid of assets before you can finalise a property settlement you can ask the court for an injunction to stop the other person from selling or dealing with the property.

An injunction is an order from the court preventing anyone from selling or transferring assets that may be property of a marriage. 

Seek legal advice if you have concerns about the other person disposing of property. 

Can I get spousal maintenance?

Spousal maintenance is only given if one person can financially maintain the other person and the other person cannot maintain themselves because of age, mental or physical incapacity, because they have a child under 18 in their care or any other adequate reason. The court will consider a range of things when deciding on whether to grant spousal maintenance. You should get legal advice if you want to apply for spousal maintenance.

For more information from Legal Aid WA, click here.