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What is the "property of the relationship"?

When your marriage or de facto relationship ends, all the property of your relationship that you and your former partner own needs to be divided in a way that is fair to both of you.

Property of your relationship is all the assets and debts in either your name or your partner’s name or joint names, including:

houses;
land;
superannuation;
businesses or companies;
cash;
trusts;
cars;
caravans and boats;
bank accounts;
gifts and inheritances;
lottery wins;
compensation payouts;
insurance polices;
furniture and household items;
loans and debts.

Property of your relationship includes property each of you brought into the relationship, property acquired during your relationship, and property acquired after separation.

You can make decisions about how to separate your assets while you are still together and talking about separation, or after you separate.

If you cannot reach an agreement about how to divide your assets, you can apply for property orders. You have 12 months from your divorce taking effect, or 2 years from the end of your de facto relationship, to apply.

Dividing the assets

We agree about how to divide our assets

You do not need to do anything further but if you own assets together, you should get legal advice about how to divide the assets fairly.
If you want your agreement to be legally enforceable, you can take your agreement to a lawyer and ask them to apply for consent orders. This will make your agreement legally enforceable.

We can’t agree about how to divide our assets

You and your ex can keep things that are in your own name. The assets you take will be taken into account when are trying to reach an agreement, or when a decision is made about how to divide the property of your relationship - see above.
Take a list of the value of all the assets you and your ex own to a lawyer for advice about how to divide your assets fairly.
If you don’t know the value of your ex’s assets you or a lawyer can ask them for this information.
You or your lawyer can try to negotiate with your ex.
If you still can’t reach an agreement, you can apply to the court for property division orders.
The court will divide your assets fairly after looking at the contributions you and your ex made and your current and future needs.

Debts

My ex has lots of debts in their name. They say I have to pay half of them

You do not have to pay for a debt that is not in your name.
The bank or credit provider cannot ask you to pay your ex’s debts.
You only have to pay debts in your name.

My ex forced me to take out a credit card or loan in my name

You may be able persuade the credit provider that you should not have to repay some or all of the debt.
A financial counsellor may be able to assist you to negotiate with your credit provider.
Contact us or the Financial Rights Legal Rights Legal Centre for help.

My ex says I have to pay half the joint mortgage, but I can’t afford it

You and ex are responsible for paying the mortgage repayments. There is no rule about how that is to be divided, including if you separate.
If the whole repayments are not made, the bank can ask you or your ex or both of you to pay the money owing.
If you can’t afford to pay the whole mortgage you, you can talk to your bank about making a hardship application.
The bank may agree to you paying interest only, or a reduced amount, while you sort out property division.
A financial counsellor may be able to assist you to negotiate with your bank.
Contact us or the Financial Rights Legal Rights Legal Centre for help.

We rent

I want to leave. The lease isn’t in my name

You can just leave.
You are not responsible for the rent, or any damage done to the property.

I want to leave. The lease is in my name or both names

It is important that you end your responsibility under the lease, otherwise you might be listed on a bad tenant database.
If you have experienced domestic or family abuse you might be able to end your lease by giving your landlord, and any other co-tenants, a Domestic Violence Termination Notice.
If you have not experienced domestic or family abuse, and your fixed term lease has ended, you can give a 21 day termination notice.
If you have not experienced domestic or family abuse, and your fixed term lease has not ended, you may have to pay break lease fees, unless you and the landlord agree you don’t have to.
For more information, visit the Tenants’ Union NSW website.

I want to stay and my ex to go. The lease is in my name only

Your ex is only allowed to live in the property with your consent.
You can ask your ex to move out.
If they do not move out, you could ask your landlord if you can change the locks. You can also report to the Police that they are trespassing.
You can also tell the police that your ex is refusing to leave your property and ask them to help get him out. Police can also get an apprehended violence order (AVO) for your protection.

I want to stay and my ex to go. The lease is in both our names

You both have the right to stay except:
- if an apprehended domestic violence order (ADVO) excludes them; or
- a family court or the NSW Civil and Administrative Tribunal makes an order that they cannot live in the house.

I’m not sure if what my ex says is true

My ex says they are entitled to 50% of everything I own

This isn’t true.
The court can transfer some of the assets and debt in one person’s name to the other person if they think it is fair to do so.
They will decide what’s fair by looking at the financial and non-financial contributions you both made during your relationship as well as your current and future needs.

I want my ex to move out, but we are both named on the title or lease

If their name is on the title or lease, they have the right to stay except:
- if an apprehended domestic violence order (ADVO) excludes them; or
- a family court or the NSW Civil and Administrative Tribunal makes an order that they cannot live in the house.
Contact us or Legal Aid NSW for advice.

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