In this guide
Key takeaway: Property settlement after separation involves dividing all assets and liabilities accumulated during the relationship — not just the matrimonial home. Australian courts use a four-step process to determine what's fair. You have 12 months from the date of divorce to apply for property orders (or 2 years from the end of a de facto relationship). Most couples reach agreement through property settlement mediation without needing a court to decide.
What property settlement covers
Property settlement in Australian family law is the legal process of dividing assets and liabilities between separating partners. It applies to married couples and de facto couples (including same-sex couples). The term "property" in family law is broader than most people expect — it covers all assets and liabilities of both parties, from wherever and whenever they were acquired.
What's included in the property pool:
- Real estate — the family home, investment properties, holiday homes
- Cash and bank accounts (joint and individual)
- Superannuation (super is property in family law and can be split)
- Investments — shares, managed funds, crypto
- Business interests and their value
- Vehicles and personal property
- Trust assets (in many cases)
- Inheritances received during the relationship (in many cases)
- Debts — mortgages, personal loans, credit cards, business debts
There is no fixed rule that the family home belongs to the primary carer of the children, or that assets in one person's name are exclusively theirs. Family law looks at the totality of both parties' assets and liabilities — and both parties' contributions — to arrive at a just and equitable division.
Property settlement is complex — the sooner you understand your entitlements, the better placed you are to negotiate. Book a free consultation with our team.
Understand your entitlements — free consultation →The four-step process courts apply
When property matters come before the court, the Family Law Act 1975 requires the court to apply a structured four-step process (established by cases like Stanford v Stanford [2012] HCA 52):
- Identify and value the property pool: All assets and liabilities of both parties are identified and valued as at the date of hearing (or agreement). Both parties have a duty of full financial disclosure — failing to disclose is a serious breach with significant consequences.
- Assess contributions: Financial contributions (income, assets brought in, inheritances) and non-financial contributions (homemaking, parenting, unpaid labour in a family business) by each party are assessed. The court does not favour financial contributions over non-financial ones — the primary carer of children is making a recognised contribution.
- Consider future needs: Each party's future needs are assessed — factors include age, health, earning capacity, care of children, and length of the relationship. If one party will have significantly different economic opportunities going forward, this may be reflected in an adjustment to the percentage division.
- Consider what's just and equitable: The court considers whether the proposed division, taking into account all the above, is just and equitable in all the circumstances. A division that seems mechanically calculated but produces an unfair outcome can be adjusted.
This same framework is used in mediation — the mediator helps the parties apply these principles to their own situation and negotiate an outcome within the range of what a court would consider just and equitable.
Time limits you must know
| Relationship type | Time limit to apply for property orders |
|---|---|
| Married couples | 12 months from the date the divorce order takes effect |
| De facto couples | 2 years from the date of separation |
These are hard time limits. After they expire, you cannot apply for property orders without the court's leave (permission) — which is not automatic and can be difficult to obtain. Do not let these deadlines pass without either reaching a formal agreement or filing a protective application with the court.
Importantly, these time limits apply even if you are still living in the family home or still communicating about arrangements. Physical separation starts the clock for de facto couples; divorce order date starts the clock for married couples.
What assets are included — and when
The property pool includes assets acquired before, during, and sometimes after the relationship. The timing of when an asset was acquired affects how it is treated in the contributions analysis — not whether it's included in the pool.
Inheritances are a common source of confusion: an inheritance received during the relationship is generally included in the property pool, but it may be treated as a financial contribution by the party who received it, which affects the percentage division. A large inheritance received near the end of a short relationship may attract a different treatment than one received at the beginning of a long relationship.
Superannuation requires special mention: super is property in family law and can be split between the parties through a superannuation splitting agreement. Super splitting allows one party's super balance to be transferred to the other's super fund — it does not create an immediate cash payment. Super is dealt with within the property settlement framework but requires specific documentation (a flagging or splitting agreement).
How contributions are assessed
The law recognises three categories of contribution:
- Financial contributions to the acquisition, conservation, or improvement of property — including income earned, assets brought into the relationship, money received as gifts or inheritances
- Non-financial contributions — work performed in or around the home, including renovations, maintenance, and unpaid work in a family business
- Contributions to the welfare of the family — parenting, homemaking, and other contributions to the family's wellbeing
The law does not rank these. A party who earned a high income and contributed substantial financial assets may not automatically receive a larger share than a party who made equal contributions through homemaking and primary parenting. The assessment is holistic — looking at what each party actually contributed across the whole of the relationship.
Understanding your contributions — and how the law assesses them — gives you the foundation to negotiate from a position of knowledge. Talk to our mediators.
Get started — book a consultation →Future needs adjustments
After assessing contributions, the court (or parties in mediation) considers each party's future needs. Relevant factors include:
- Each party's age and health
- Income, property, and financial resources each party currently has or is likely to have in the future
- Each party's ability to earn income (including the effect of parenting responsibilities on earning capacity)
- Care and education of the children
- Length of the relationship
- Standard of living during the relationship
A common scenario: one party (often but not always the primary carer) has been out of the workforce for several years during the relationship and faces reduced future earning capacity. A future needs adjustment in their favour may be appropriate to reflect this. The adjustment does not have a fixed percentage — it depends on the specific circumstances.
How to reach agreement
The vast majority of property settlements in Australia are reached by agreement — through negotiation, solicitor-to-solicitor correspondence, or mediation. Court-determined property settlements are relatively rare. Agreement is almost always faster, cheaper, and less damaging than litigation.
Property settlement mediation with Mediations Australia involves a structured process where both parties, with the assistance of a neutral mediator, work through each step of the four-step framework: identifying and agreeing on the property pool, discussing contributions, considering future needs, and arriving at a proposed division that both parties can accept.
Formalising the agreement
A verbal or informal agreement about property division is not legally enforceable. To make your agreement binding, you must formalise it through one of two mechanisms:
- Consent orders: You apply to the FCFCOA for orders by consent — the court approves the agreed terms and they become court orders with full legal enforceability. Consent orders are the most common way to formalise property agreements. Cost: typically $1,500–$3,500 in legal fees, plus a $170 court filing fee.
- Binding Financial Agreement (BFA): A BFA is a contract between the parties that, if properly prepared and signed, is enforceable without court approval. Both parties must have independent legal advice. BFAs are typically used for complex arrangements, pre-nuptial agreements, or where the parties don't want court involvement in approving the terms.
Frequently asked questions
Is there an automatic 50/50 split in Australian property settlements?
No. Australian family law has no presumption of equal division. The division is based on the specific contributions and needs of the parties in their relationship. Outcomes commonly range from 40/60 to 60/40, but some cases result in more extreme divisions depending on the circumstances. A 50/50 division is common in long relationships where contributions were roughly equal — but it is never automatic.
Does it matter who owns the assets legally?
Not in itself. Assets in one party's name, in a company, or in a trust can all be included in the property pool if they are found to be assets of the relationship. Legal ownership is one factor — not a determinative one.
Can I keep my super separate from the property settlement?
No — super must be disclosed and is part of the property pool. The parties can, however, agree to offset super against other assets rather than splitting it directly. For example, one party keeps their full super balance and the other receives a larger share of the home equity to compensate. This is a common and often practical arrangement.
What if my ex-partner is hiding assets?
Both parties have a legal duty to make full and frank financial disclosure. Failure to disclose is a serious breach that can result in the court setting aside any agreement reached and making adverse findings. If you suspect asset concealment, raise it with a family lawyer — the court has discovery powers that can compel disclosure, including of third-party records.
Related guides
- property settlement in family law
- consent orders
- binding financial agreements
- cost of divorce in Australia
- family mediation
The property settlement framework is in the Family Law Act 1975 (Part VIII). Court filing and procedure: Federal Circuit and Family Court of Australia.