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Where am I now? Lawlink > Understanding Your Legal Rights > Equal Rights > Property rights
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Property rights
 Domestic relationship agreements
Dividing property when a relationship breaks up
Considerations in dividing property
Domestic relationship agreements
 As a same sex couple, you can enter into an agreement with your partner about your financial relationship before you start living together as a de facto couple, or during the relationship. This is referred to as a ‘domestic relationship agreement’. This agreement can set out how the finances of your partnership are dealt with during the course of your relationship, and if the relationship breaks down. For a domestic relationship agreement to become legally binding, both you and your partner must seek independent legal advice and attach a certificate of advice from the both lawyers to the agreement.
*Note: The section below is under review. For more information or legal help please contact the Inner City Legal Centre.
Dividing property when a relationship breaks up
If your relationship breaks down and: you have lived in a de facto relationship with your partner for at least two years; and/or there is a child of the relationship; and/or one of you has made substantial contributions to the property, the process for dividing the property will be determined by the Property (Relationships) Act (NSW) .
Please note that in the near future, property settlements for opposite sex de facto relationships will move to the jurisdiction of the (Commonwealth) Family Court and Federal Magistrates Court. However, property settlements of same sex de facto couples will remain in the jurisdiction of NSW courts.
Any claim for property division should be made within 2 years of you separating from your partner.
Determining your entitlements and dividing property can be difficult so it is best to seek legal advice. You can get free legal advice from NSW Legal Aid or from a community legal centre (although this is unlikely to extend to representation), or you can contact a private lawyer.
In most cases, couples will try to reach an agreement through a process of negotiation or mediation. This usually involves verifying what property exists and the financial circumstances of each of you, then working out a way of dividing the property so that you each receive the share to which you are entitled.
If you can reach an agreement, you can make this agreement legally binding in one of two ways. The first is by court orders, which can be done with the consent of both you and your partner. This is a relatively straightforward process and can be done most economically through a local court. The other is for both of you to enter into a binding agreement, called a ‘domestic relationship’ or ‘termination agreement’. A verbal or informal agreement is not advisable, as it is not legally binding. If you and your partner cannot reach an agreement, you can start court action for orders to divide the property and ask the court to decide. This can be done through either the supreme, district or local courts of New South Wales, depending on the value of the property. Even if you commence court action, you and your partner could settle before a court decision at any time.
Considerations in dividing property
When a court decides how to divide property between a separated couple, it will take into account what property each of the parties brought into the relationship, and contributions made during the relationship. Contributions can be financial, like mortgage payments or non-financial like doing renovation work and landscaping.
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About this website
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While every effort has been made to ensure that the information on this website and in the Understanding Your Legal Rights booklet is as up to date and accurate as possible, it is not a substitute for legal advice. The law is complex and may change. Readers are advised to seek specific legal advice in relation to their particular situation.
Further information.
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