§1What Is Property Settlement?
When a relationship breaks down — whether a marriage or a de facto partnership — the law requires that both parties' assets and liabilities be divided fairly. This process is known as property settlement. In Australia, property settlement is governed primarily by the Family Law Act 1975 (Cth), which applies to married couples and, in most states and territories, to de facto couples as well.
It is important to understand that separation does not automatically divide your property. You must either reach an agreement with your former partner or apply to the court for orders.
§2What Is Included in a Property Settlement?
The property pool considered during settlement can include:
- Real estate (family home, investment properties)
- Superannuation entitlements
- Savings and bank accounts
- Vehicles, boats, and personal items
- Shares and investments
- Businesses and business interests
- Debts such as mortgages, personal loans, and credit cards
Assets held solely in one party's name, or inherited gifts, may still be included depending on the circumstances.
§3How Does a Court Assess a Fair Division?
Australian courts follow a structured four-step process:
- 1.Identify and value all assets and liabilities in the property pool
- 2.Assess contributions made by each party — financial and non-financial (e.g., homemaking, parenting)
- 3.Consider future needs — including age, health, income capacity, and care of children
- 4.Determine whether the outcome is just and equitable in all the circumstances
There is no automatic 50/50 split. Each matter is assessed individually.
§4How Can You Finalise a Property Settlement?
You can finalise your property settlement in two main ways:
- Consent orders – You and your former partner agree on the division and apply to the Federal Circuit and Family Court of Australia to have the agreement formalised as court orders
- Binding financial agreement (BFA) – A legally binding contract signed by both parties, each with independent legal advice, without court involvement
- Court proceedings – If agreement cannot be reached, either party may apply to the court for a determination
§5Time Limits You Must Know
- Married couples must commence property settlement proceedings within 12 months of the date a divorce order takes effect
- De facto couples must commence proceedings within 2 years of the date of separation
Missing these deadlines can mean losing your right to make a claim. Always seek legal advice promptly after separation.
§6Do Laws Differ by State or Territory?
Yes. While the Family Law Act 1975 applies nationally to married couples, de facto property matters in Western Australia are handled under state legislation rather than the federal Act. The general principles are broadly similar, but procedural differences exist. Always confirm the rules that apply in your specific state or territory.
Disclaimer: This article provides general legal information only and does not constitute legal advice. Laws vary by state and territory, and your circumstances may differ. Please consult a qualified Australian solicitor for advice specific to your situation.
💡 ROY can provide a free AI-powered analysis of your property settlement matter — helping you understand your options before you speak to a solicitor.
§7Q: Do we have to go to court to finalise a property settlement?
No. Most couples reach agreement outside of court and formalise this through consent orders or a binding financial agreement. Court proceedings are generally a last resort when parties cannot agree.
§8Q: Is superannuation included in property settlement?
Yes. Superannuation is treated as property under Australian family law and can be split between parties using a superannuation splitting order, even if it cannot be accessed immediately.
§9Q: What happens if we cannot agree on the value of assets?
If parties disagree on valuations, independent valuers — such as real estate agents or business valuers — can be engaged. Courts also have the power to appoint an expert valuer if proceedings are commenced.
§10Q: Can I make a property settlement claim after the time limit has passed?
In limited circumstances, a court may grant leave to proceed out of time, but this is not guaranteed. It is strongly advisable to act well within the applicable deadline to protect your entitlements.
§11Q: Does it matter whose name an asset is in?
Generally, no. Courts look at the overall property pool regardless of whose name assets or liabilities are held in. Both parties' contributions and needs are weighed holistically.
This is known as non-disclosure. Australian courts take this seriously. There are legal mechanisms, including subpoenas and orders for disclosure, to compel parties to reveal their financial position honestly.
