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Property Settlement

Dividing your hard-earned property following separation can be emotionally exhausting. Having clear advice about your options and a considered strategy for achieving your goal brings certainty and confidence. While every case is different, at Empower Family Law & Mediation we have the experience to provide you with realistic and strategic advice about your property and spousal maintenance entitlements.

The outcome in each case will be different depending on the facts and circumstances of the case. The Family Law Act 1975 sets out a number of steps to be taken into account in determining how the assets of a separated couple should be divided.

In general, the steps involve:

Identifying and valuing all of the assets, financial resources and debts of the parties. Each party is required to disclose their financial circumstances. Where the value of any asset is uncertain, or if the parties do not agree on the value, an expert valuation is sought.
Assessing the contributions each party has made toward the acquisition of the assets. Contributions include both financial and non-financial contributions. Non-financial contributions include contributions as a homemaker and parent. Homemaker and parent contributions are generally given similar weight as contributions made by way of income. Financial contributions include income as well as funds received from outside sources, for example, an inheritance.
A consideration of the ‘future needs’ factors — the ‘current and future circumstances’ set out in section 79(5) of the Family Law Act 1975. These factors were moved into section 79(5) on 10 June 2025; section 75(2), where they previously sat, now deals with spousal maintenance. These include factors which may affect a party’s financial future, such as their age or state of health, discrepancies in income, earning potential or expenses associated with caring for children.
An overall examination of the findings to determine whether the overall result is “just and equitable” in all the circumstances.

Since 10 June 2025, the Family Law Amendment Act 2024 has also required the Court to specifically consider the economic effect of family violence, including financial and economic abuse when weighing contributions and dividing property. If family violence has affected your finances during or after your relationship, the Court must now take that into account.

What if I had significant assets at the start of our relationship?

The assets, including real property, investments, shares and savings each party brought to the relationship will be considered in assessing their respective contributions. Where one party’s contributions at the commencement of the relationship were significant, for example where they have provided a springboard from which to extend a couple’s asset base, they may impact the overall division of assets following separation.

However, in general less weight is given to initial asset contributions the longer a relationship continues. Substantial initial contributions by one party may be ‘eroded’ or balanced by the later contributions of the other party.

Put simply, the weight to be given to an initial contribution may turn on a number of factors and professional advice should be sought before any agreement is reached.

What if my family helped us out along the way?

As property prices and the cost living rise, it is increasingly common for couples to receive family help along the way, this help can include:

A lump sum amount to assist with a property purchase.
Periodic sums to help with living expenses.
Rent free accommodation to help parties to save.
Loans.
Security for loans.
Trust distributions.
Assistance with school fees.

Following separation, it is important to tease out the nature of these contributions and to figure out what weight should be attached to them. In assessing contributions made on behalf of one party, the following factors are relevant:

Whether the contribution was a gift or a loan.
How much was contributed.
How the funds were contributed (for example, directly to one party or to a joint account?).
At what point during the relationship was the contribution made?
Was there a loan agreement or mortgage executed between the parties and the family members providing the assistance?

In general, financial assistance rendered to a couple will be considered to have been intended to benefit the party to whom the family providing the assistance is related and may ultimately increase the share of property that party receives at settlement.

Parties who receive financial assistance from family members should consider:

Executing a loan agreement requiring regular repayment or a mortgage if the funds are a loan to be repaid.
Documenting the receipt of the funds and how and when they were spent.
Executing a Financial Agreement which takes account of the financial assistance.

How can I reach agreement with my ex-partner?

The Federal Circuit and Family Court of Australia encourages parties to reach agreement between themselves wherever possible. In most cases, with the assistance of their lawyers, parties can agree by negotiation or will attend a mediation to decide how to divide their property.

If parties cannot agree, they can bring an application for orders dividing their property. For married couples this needs to be within 12 months of a divorce order being in effect, and for de facto relationships, within 2 years of separation.

Regardless of how you agree the division of your assets, the following points are vital:

You and your ex-partner have a duty to provide full and frank disclosure of all documents relevant to your financial circumstances during your negotiations. You should insist on the opportunity to review those documents and satisfy yourself that your ex-partner is not seeking to hide assets or income.
You should seek independent legal advice from a family lawyer before you sign any settlement documents.
You must formalise your settlement agreement by way of either a consent order sealed by the Federal Circuit and Family Court of Australia or a binding Financial Agreement. There have been many cases where informal settlements have been re-opened and litigated years later, usually at great expense to both parties.
You should revisit your Will, Powers of Attorney and the nominated beneficiaries on your superannuation fund to ensure they are consistent with your property division and your current wishes.
You should not base your settlement agreement or your expectation of how your property should be divided on other people’s experiences. Every case is unique, and the settlement must be tailored to the circumstances.

Why do I need to formalise my settlement?

Clients often baulk at the expense of formalising a settlement. If a settlement has been reached amicably, they may feel that seeking to formalise the agreement will upset or insult their ex-partner. Some clients are simply exhausted and want to wrap things up as quickly as possible.

However, it is critical to formalise an agreement by either consent orders or a financial agreement. Here’s why:

The other party may not follow through with the agreement.
An agreement that has not been documented in accordance with the requirements of the Act is neither binding nor enforceable.
Superannuation entitlements cannot be split unless there is a formal agreement, which are formalised in either a Binding Financial Agreement or Court Orders.
Even after parties separate their finances, either party could apply to the Court later for a further adjustment. Any additional assets, liabilities or superannuation that either party accrues following an informal settlement will be included in the asset pool.
Litigation that arises after an informal separation will place financial and emotional stress on new relationships.
Litigation that arises after an informal separation will almost definitely be more costly and stressful than properly formalising an agreement will be.
Unless an agreement is carefully drafted, both parties may remain liable for joint debts. If one party does not maintain their obligations, there is nothing to stop the creditor from requiring the other party to meet the outstanding obligations.

At Empower Family Law & Mediation we understand you have worked hard to build your assets. We are experienced at providing strategic advice on your options which is calculated to ensure you receive your full entitlements.

We will keep you informed every step of the way, and we will be clear on your legal costs. Please contact us on (03) 7020 6542 to discuss your property matter.

Speak with us

Your first 30-minute consultation is free. Call (03) 7020 6542 or contact our team to discuss your circumstances and next steps.

Phone: (03) 7020 6542

Email: info@empowerfamilylaw.com.au

Let us be your voice in troubled times.

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Binding Financial Agreements (including Prenuptial Agreements)› Child Relocation› Child Support› Consent Orders› De Facto Relationships› Divorce› Family Mediation› Family Violence and Intervention Orders› Grandparents and Other Carers› Parenting and Child Custody› Separation› Spousal Maintenance› Superannuation› Urgent Family Law Issues›

When the Court can make property orders

The Court's power to make financial and property orders arising out of a marriage comes from Part VIII of the Family Law Act 1975. Two points often surprise people:

You do not have to be divorced first. You can ask the Court to make property settlement or maintenance orders arising out of a marriage even though your divorce has not been finalised, and in many cases it is better to resolve the property before applying for a divorce, because a time limit starts to run once the divorce is final.
A void marriage still counts. If a Court has declared that your marriage was a nullity, you can still ask it to make financial or property orders arising out of that void marriage.

The Court only has power to make financial orders if both parties were alive at the time the application was filed. If a former spouse dies before an application is made, the position changes considerably and you should take advice quickly.

Smaller property pools: Priority Property Pool Cases

Not every matter needs the full court process. Your matter may be dealt with as a Priority Property Pool Case where you are seeking financial orders only and the net value of the property, excluding superannuation interests, is or is likely to be less than $550,000.

These cases are managed under a separate practice direction aimed at the simplest, quickest and most cost-effective path to a final outcome. Being in this stream changes how your matter is run, so it is worth knowing early whether your pool is likely to fall under the threshold.

Debts, bankruptcy and the family pool

Property settlement divides what you owe as well as what you own. Where one party is bankrupt, the Court can deal with that bankruptcy alongside certain family law proceedings, rather than leaving the two to run separately. If either of you is facing insolvency, tell your lawyer early: it affects who the proper parties to the proceedings are and what can safely be agreed.

The Attorney-General's Department publishes a plain-language guide, Separating with debt: a guide to your legal options, which sets out how family law and consumer credit law interact when a relationship ends with debt attached.

Pets are treated as property

Companion animals are part of the family, but in family law proceedings they are classed as property. Since 10 June 2025 the Family Law Act 1975 has dealt with them under a framework of their own, separate from the rest of the property pool — sections 79(6) and 79(7) for married couples, sections 90SM(6) and 90SM(7) for de facto couples.

What counts as a companion animal. An animal kept by you or your former partner, or by both of you, primarily for the purpose of companionship. Four categories are excluded: an assistance animal within the meaning of the Disability Discrimination Act 1992, an animal kept as part of a business, an animal kept for agricultural purposes, and an animal kept for use in laboratory tests or experiments. "Primarily for the purpose of companionship" is not defined and takes its ordinary meaning, so a working farm dog and a household pet can be treated quite differently.

The orders the Court can make. Only three, and they may be interim or final, including by consent:

that only one party, or only one person who has been joined as a party, is to have ownership of the animal
that the animal be transferred to another person who has consented to the transfer
that the animal be sold.

The Court cannot order shared ownership, shared care, or any arrangement for sharing possession. There is no equivalent of a parenting arrangement for animals, and this catches many people out. If arrangements for a pet matter to you, that is a strong reason to reach agreement rather than litigate, because agreement is the only route to an arrangement the Court has no power to impose.

What the Court weighs. In deciding what order to make about ownership, if any, the Court takes the following into account so far as they are relevant:

the circumstances in which the animal was acquired
who has ownership or possession of it
the extent to which each party cared for, and paid for the maintenance of, the animal
any family violence to which one party has subjected or exposed the other
any history of actual or threatened cruelty or abuse by a party towards the animal
any attachment to the animal by a party, or by a child
the demonstrated ability of each party to care for and maintain the animal in future, without support or involvement from the other party
any other fact or circumstance which, in the opinion of the Court, the justice of the case requires to be taken into account.

That list is the whole exercise for a pet. The contributions and current-and-future-circumstances considerations that govern the rest of the property pool are expressly excluded when the Court is deciding who owns a companion animal.

Two practical points. Most separating couples settle what happens to their pets themselves, and nothing obliges you to obtain an order at all. And the new framework does not disturb orders already made — if you have existing financial or property orders, keep following them. See the Court's guidance on family pets.

Superannuation has to be dealt with at the same time

Superannuation interests can be adjusted by splitting one or more of them, but adjusting superannuation is not mandatory and, if you want it done, it must be done at the point you formalise your financial arrangements. It is not something that can easily be revisited afterwards. Our superannuation page explains how splitting works and what it does not do.

Where to read more

The Attorney-General's Department guide Property and financial agreements and consent orders: what you need to know sets out the options for resolving property, financial and superannuation arrangements, from an informal agreement through to consent orders and litigation. The Court's own Family Law Practice Direction – Financial or property proceedings sets out the procedure the Court follows.

The Court information on this page reflects the published guidance of the Federal Circuit and Family Court of Australia on financial and property matters, as at 26 October 2026. Thresholds and procedures change. It is general information only, not legal advice, and does not replace advice about your own circumstances.

Is there a formula for dividing property in Australia?

No. There is no formula and no fixed percentage, and nobody can tell you precisely what a judicial officer will order. The Court identifies and values the assets, liabilities and financial resources of both parties, whether held jointly or individually; assesses each party's contributions, financial and non-financial, including as homemaker and parent; considers each party's future needs; and then stands back and asks whether the overall result is just and equitable on the facts of the case. An experienced family lawyer can often predict a range of likely outcomes from a given set of facts, but your settlement will probably differ from others you have heard about, because the exercise turns on the whole history and current circumstances of your particular family rather than on a tariff.

What counts as a contribution?

Considerably more than money. The Court weighs direct financial contributions, such as property each of you brought into the relationship and your wage and salary earnings while you lived together; indirect financial contributions, such as gifts and inheritances from family members; non-financial contributions to property, such as renovations to a home, the management of investments or the running of a business; and contributions to the welfare of the family, including caring for children and doing housework. Homemaker and parent contributions are generally given similar weight to contributions made by way of income. Since 10 June 2025 the Court must also consider the economic effect of any family violence, including financial and economic abuse, when weighing contributions, so conduct that limited one party's capacity to contribute is relevant.

What are the future needs factors?

Having assessed contributions, the Court considers what each of you will need going forward, which can shift an outcome substantially away from a contributions-based split. The considerations include age and health, income, property and financial resources, each party's ability to earn an income, who has the care of children including the need to provide appropriate housing for them, the effect of any family violence, and what amounts to a suitable standard of living. Where one party has significantly reduced earning capacity because of age, illness or years out of the workforce caring for children, that is precisely what this stage is designed to address. These considerations sit in section 79(5) of the Family Law Act for married couples and section 90SM(5) for de facto couples. Both subsections were inserted on 10 June 2025; before then these factors were reached through section 75(2), which now deals only with spousal maintenance.

How long do I have to apply?

If you were married, an application for property adjustment must be made within 12 months of your divorce becoming final. If your marriage was declared a nullity, the limit is 12 months from the decree of nullity. If you were in a de facto relationship, you have two years from the breakdown of the relationship. Outside those periods you must ask the Court for leave to proceed, which is not always granted, so a missed deadline is a real risk rather than a formality. Importantly, you do not have to wait for a divorce to resolve property: you can apply for property settlement or maintenance orders arising out of a marriage even though your divorce has not been finalised, and in many cases it is better to deal with the property first so the deadline never becomes relevant.

Do I have to disclose everything, including assets in a company or trust?

Yes. The duty of disclosure requires full and frank disclosure of your total direct and indirect financial circumstances, and it is deliberately wide. It covers all sources of earnings, interest, income, property including vested or contingent interests, and other financial resources, whether those things are owned by you directly, go to some other person or beneficiary such as a child or a new partner, or are held in corporations, trusts, companies or other structures. It extends to documents the other party may not know about. The duty begins with the pre-action procedure before a case starts and continues until the matter is finalised, so it is ongoing: as circumstances change or further documents come into your possession, power or control, you must keep disclosing.

What happens if someone moves assets before separation?

You must disclose any disposal of property, by sale, transfer, assignment or gift, made in the year immediately before separation or at any time since final separation, where it may affect, defeat or deplete a claim. The look-back period reaches behind the separation date, so a transfer made while the relationship was ending but before anyone spoke to a lawyer is still disclosable. Before the first court date every party must also file a written undertaking confirming they understand the duty, have complied to the best of their knowledge and ability, and acknowledge that breach may be contempt of court. Non-disclosure carries real consequences: the Court may refuse to allow the material to be used as evidence, stay or dismiss part or all of a case, order costs, or impose a fine or imprisonment.

What happens to the family pet?

Companion animals are part of the family, but in family law proceedings they are classed as property, and since 10 June 2025 they have been dealt with under a framework of their own — sections 79(6) and 79(7) for married couples, sections 90SM(6) and 90SM(7) for de facto couples. A companion animal is an animal kept by you or your former partner, or both, primarily for the purpose of companionship; assistance animals, animals kept as part of a business or for agricultural purposes, and animals kept for laboratory use are excluded. The Court can make only three kinds of order, interim or final, including by consent: that one party own the animal, that it be transferred to another person who has consented, or that it be sold. It cannot order shared ownership, shared care or any arrangement for sharing possession, so there is no equivalent of a parenting arrangement for animals. In deciding, the Court weighs the circumstances in which the animal was acquired, who owns or possesses it, who cared for and paid to maintain it, any family violence to which one party subjected or exposed the other, any history of actual or threatened cruelty or abuse towards the animal, any attachment held by a party or a child, each party's demonstrated ability to care for it in future without the other's involvement, and anything else the justice of the case requires. Notably, the contributions and future-circumstances considerations that govern the rest of the property pool do not apply to deciding who owns a pet. Most couples settle the question themselves, existing orders are unaffected by the change, and if a shared arrangement matters to you, agreement is the only route to one.

Our property pool is modest. Is there a simpler process?

There may be. Your matter may qualify as a Priority Property Pool Case where you are seeking financial orders only and the net value of the property, excluding superannuation interests, is or is likely to be less than $550,000. These cases are managed under their own practice direction, designed to find the simplest, quickest and most cost-effective process to finalise the matter, with a more streamlined path than a standard financial case. Knowing early whether your pool is likely to fall under the threshold is worth doing, because it changes how the matter is run and what you will be asked to file. Note that the threshold looks at net value after liabilities and excludes superannuation, which can bring matters within it that first appear larger.