Alteration of property interests
Orders in property settlement proceedings (1) In property settlement proceedings after the breakdown of a de facto relationship, the court may, subject to subsection (6), make such order as it considers appropriate: (a) in the case of proceedings with respect to the property of the parties to the de facto relationship or either of them—altering the interests of the parties to the de facto relationship in the property; or (b) in the case of proceedings with respect to the vested bankruptcy property in relation to a bankrupt party to the de facto relationship—altering the interests of the bankruptcy trustee in the vested bankruptcy property; including: (c) an order for a settlement of property in substitution for any interest in the property; and (d) an order requiring: (i) either or both of the parties to the de facto relationship; or (ii) the relevant bankruptcy trustee (if any); to make, for the benefit of either or both of the parties to the de facto relationship or a child of the de facto relationship, such settlement or transfer of property as the court determines. Note 1: The geographical requirement in section 90SK must be satisfied. Note 2: The court must be satisfied of at least one of the matters in section 90SB. Note 3: For child of a de facto relationship, see section 90RB. Note 4: Subsection (6) relates to property that is a companion animal. (2) The court must not make an order under this section unless it is satisfied that, in all the circumstances, it is just and equitable to make the order. (3) In considering what order (if any) should be made under this section in property settlement proceedings, the court: (a) is to identify: (i) the existing legal and equitable rights and interests in any property of the parties to the de facto relationship or either of them; and (ii) the existing liabilities of the parties to the de facto relationship or either of them; and (b) is to take into account (except for the purpose of making an order with respect to the ownership of property that is a companion animal): (i) the considerations set out in subsection (4) (considerations relating to contributions); and (ii) the considerations set out in subsection (5) (considerations relating to current and future circumstances). Note: See subsections (6) and (7) in relation to orders with respect to property that is a companion animal. Considerations relating to contributions (4) For the purposes of subparagraph (3)(b)(i), the court is to take into account the following considerations, so far as they are relevant: (a) the financial contribution made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship: (i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or (ii) otherwise in relation to any of that last‑mentioned property; whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; (b) the contribution (other than a financial contribution) made directly or indirectly by or on behalf of a party to the de facto relationship, or a child of the de facto relationship: (i) to the acquisition, conservation or improvement of any of the property of the parties to the de facto relationship or either of them; or (ii) otherwise in relation to any of that last‑mentioned property; whether or not that last‑mentioned property has, since the making of the contribution, ceased to be the property of the parties to the de facto relationship or either of them; (c) the contribution made by a party to the de facto relationship to the welfare of the family constituted by the parties to the de facto relationship and any children of the de facto relationship, including any contribution made in the capacity of homemaker or parent; (ca) the effect of any family violence, to which one party to the de facto relationship has subjected or exposed the other party, on the ability of a party to the de facto relationship to make the kind of contributions referred to in paragraphs (a), (b) and (c); (d) the effect of any proposed order upon the earning capacity of either party to the de facto relationship; (f) any other order made under this Act affecting a party to the de facto relationship or a child of the de facto relationship; (g) any child support under the Child Support (Assessment) Act 1989 that a party to the de facto relationship has provided for a child of the de facto relationship. Considerations relating to current and future circumstances (5) For the purposes of subparagraph (3)(b)(ii), the court is to take into account the following considerations, so far as they are relevant: (a) the effect of any family violence, to which one party to the de facto relationship (the subject de facto relationship) has subjected or exposed the other party, on the current and future circumstances of the other party, including on any of the matters mentioned elsewhere in this subsection; (b) the age and state of health of each of the parties to the subject de facto relationship; (c) the income, property and financial resources of each of the parties to the subject de facto relationship and the physical and mental capacity of each of them for appropriate gainful employment; (d) the effect of any material wastage, caused intentionally or recklessly by a party to the subject de facto relationship, of property or financial resources of either of the parties to the subject de facto relationship or both of them; (e) any liabilities incurred by either of the parties to the subject de facto relationship or both of them, including the nature of the liabilities and the circumstances relating to them; (f) the extent to which either party to the subject de facto relationship has the care of a child of the de facto relationship who has not attained the age of 18 years, including the need of either party to provide appropriate housing for such a child; (g) commitments of each of the parties to the subject de facto relationship that are necessary to enable the party to support themselves and any child or other person that the party has a duty to maintain; (h) the responsibilities of either party to the subject de facto relationship to support any other person; (i) the eligibility of either party to the subject de facto relationship for a pension, allowance or benefit under: (i) any law of the Commonwealth, of a State or Territory or of another country; or (ii) any superannuation fund or scheme, whether the fund or scheme was established, or operates, within or outside Australia; (j) if either party to the subject de facto relationship is eligible for a pension, allowance or benefit as mentioned in paragraph (i)—the rate at which it is being paid to the party; (k) a standard of living that in all the circumstances is reasonable; (l) the extent to which an alteration of the interests of the parties to the subject de facto relationship in any property would enable a party to undertake education or establish a business or otherwise obtain an adequate income; (m) the effect of any proposed order on the ability of a creditor of a party to the subject de facto relationship to recover the creditor’s debt, so far as that effect is relevant; (n) the extent to which each party to the subject de facto relationship has contributed to the income, earning capacity, property and financial resources of the other party; (o) the duration of the subject de facto relationship and the extent to which it has affected the earning capacity of each party to the subject de facto relationship; (p) the need to protect a party to the de facto relationship who wishes to continue that party’s role as a parent; (q) if either party to the subject de facto relationship is cohabiting with another person—the financial circumstances relating to the cohabitation; (r) the terms of any order or declaration made, or proposed to be made, under this Part in relation to: (i) a party to the subject de facto relationship (in relation to another de facto relationship); or (ii) a person who is a party to another de facto relationship with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); (s) the terms of any order or declaration made, or proposed to be made, under Part VIII in relation to: (i) a party to the subject de facto relationship; or (ii) a person who is party to a marriage with a party to the subject de facto relationship; or (iii) the property of a person covered by subparagraph (i) and of a person covered by subparagraph (ii), or of either of them; or (iv) vested bankruptcy property in relation to a person covered by subparagraph (i) or (ii); (t) any child support under the Child Support (Assessment) Act 1989 that a party to the subject de facto relationship is to provide, or might be liable to provide in the future, for a child of the subject de facto relationship; (u) the terms of any Part VIIIAB financial agreement that is binding on either or both of the parties to the subject de facto relationship; (v) the terms of any financial agreement that is binding on a party to the subject de facto relationship; (w) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account. Considerations relating to companion animals (6) In property settlement proceedings, so far as they are with respect to property that is a companion animal, the court may make an order (including a consent order or an interim order): (a) that only one party to the de facto relationship, or only one person who has been joined as a party to the proceedings, is to have ownership of the companion animal; or (ab) that the companion animal be transferred to another person who has consented to the transfer; or (b) that the companion animal be sold. The court may not make any other kind of order under this section with respect to the ownership of the companion animal. Note: For companion animal, see subsection 4(1). (7) In considering what order (if any) should be made under this section with respect to the ownership of property that is a companion animal, the court is to take into account the following considerations, so far as they are relevant: (a) the circumstances in which the companion animal was acquired; (b) who has ownership or possession of the companion animal; (c) the extent to which each party cared for, and paid for the maintenance of, the companion animal; (d) any family violence to which one party has subjected or exposed the other party; (e) any history of actual or threatened cruelty or abuse by a party towards the companion animal; (f) any attachment by a party, or a child of the de facto relationship, to the companion animal; (g) the demonstrated ability of each party to care for and maintain the companion animal in the future, without support or involvement from the other party; (h) any other fact or circumstance which, in the opinion of the court, the justice of the case requires to be taken into account.
Sourced from the Federal Register of Legislation at 26 May 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au. Verify the current text against the official source before relying on it.
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