Why disclosure comes first
You can't negotiate a fair division of property if you don't know what there is to divide. Separating couples have a legal duty to give each other full and frank disclosure of information relevant to their financial circumstances. This includes assets, liabilities, income and superannuation. The duty applies while you're preparing for potential court proceedings, not just once a case has started.
In practice, exchanging documents early means mediation can focus on options and priorities instead of arguments about what exists or what it's worth.
Documents commonly exchanged
- income tax returns and notices of assessment for recent years
- recent payslips or business financial statements
- bank, savings, credit card and loan statements
- superannuation statements
- property titles, mortgage statements and valuations or appraisals
- vehicle details and any significant personal assets
- information about trusts, companies or business interests
If you disagree about the value of a significant asset, such as the family home or a business, an agreed independent valuation can save time and conflict.
The role of independent legal advice
A mediator is impartial and doesn't give legal advice. It's important that each person gets independent advice from their own family lawyer about how the law might apply to them, ideally before mediation and before signing anything. Depending on your circumstances, financial, tax or superannuation advice may also be valuable.
From agreement to a binding settlement
An agreement reached in mediation isn't automatically a legally binding property settlement. To make it binding, couples usually use one of two options:
- Consent orders: you apply to the Federal Circuit and Family Court of Australia, which checks that the proposed orders are just and equitable before making them.
- A binding financial agreement: a private agreement under the Family Law Act. It's only binding if strict requirements are met, including each person getting independent legal advice before signing.
Without a formal agreement, either person may still be able to make a property claim in the future.
Watch the time limits
Generally, married couples have 12 months from the date their divorce takes effect to apply to the court for property orders. De facto couples generally have 2 years from separation. After these deadlines, the court's permission is needed. Get legal advice early if timing could be an issue.
Before going to court
For most financial cases, the court's pre-action procedures require people to try dispute resolution and exchange disclosure before filing, unless an exemption applies. Mediation can be a practical way to take these genuine steps.
This page provides general information only and is not legal advice. Family law can be complex and the right path depends on your circumstances — we encourage you to get independent legal advice before making decisions or signing agreements.