Property Settlements
Clear, practical advice to help you resolve financial matters following separation.
Separation often involves not only emotional change, but also the need to finalise property and financial arrangements. Understanding your position early can help reduce uncertainty and allow you to move forward with confidence.
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Providing strategic legal advice on likely outcomes under the Family Law Act
Engaging in negotiations and settlement discussions, including pre‑action correspondence and formal offers
Representing clients at mediation and conciliation conferences, including Family Dispute Resolution and Court‑based events
Drafting and advising on consent orders and Binding Financial Agreements
Preparing for and managing Court proceedings, including all procedural steps and compliance requirements
Managing implementation of settlements, including property transfers, refinancing and superannuation splitting
The “four step process” – how property settlements are determined
Property settlements are governed by the Family Law Act 1975 (Cth):
For married couples: Part VIII (s 79)
For de facto couples: Part VIIIAB (s 90SM)
The Court has power to alter property interests, but only where it is satisfied that doing so is “just and equitable”.
Step 1 — Identify and value the asset pool
(s 79(3) / s 90SM(3) factors)
The first step is to identify all legal and equitable interests of both parties and determine the total net asset pool.
This includes:
all assets and liabilities, whether held jointly or individually
property acquired before, during, or after the relationship
superannuation (treated as a separate category of property)
interests in trusts, companies and business structures
financial resources (for example, anticipated inheritances or entitlements)
The Court also considers whether any assets have been:
disposed of prior to separation; or
deliberately reduced or “wasted” by one party
Each party has a duty of full and frank disclosure, and failure to do so can result in the Court drawing adverse inferences.
In more complex matters, expert evidence (such as valuers or accountants) is often required to properly determine the value of the pool.
Step 2 — Assess contributions
(s 79(4) / s 90SM(4) factors)
The Court carefully assesses the contributions made by each party throughout the relationship. These contributions are not limited to financial input—the law recognises a broad range of contributions as equally important.
Contributions are assessed holistically and fall into several key categories.
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Financial contributions include any direct or indirect financial input into the acquisition, conservation or improvement of property.
This may include:
income earned during the relationship
savings brought into the relationship at the outset
lump sum contributions (such as proceeds from sale of earlier assets)
inheritances or gifts received by one party
financial assistance from family members
The Court will also consider:
the timing of financial contributions (e.g. initial contributions vs later contributions);
whether those contributions were preserved or diminished over time; and
how those contributions affected the overall asset pool.
For example, one party may have brought significant assets into the relationship, which may carry more weight in shorter relationships.
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Non‑financial contributions refer to contributions that increase or maintain the value of property but are not monetary.
These can include:
labour, skills or expertise (e.g. renovations, building work, managing investments);
unpaid work in a family business;
contributions to improving or maintaining assets; or
managing financial affairs of the household or investments
These contributions are recognised as equally significant as financial contributions, particularly where they have added value to the asset pool.
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This is often one of the most significant categories of contribution.
It includes:
homemaking (cleaning, cooking, household management)
caring for children
supporting the other party’s career or business
managing day‑to‑day family responsibilities
The Family Law Act expressly recognises these contributions, and Courts consistently treat them as equal in weight to financial contributions.
In many long relationships, contributions as homemaker and parent are given substantial weight, even where one party did not earn an income.
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The Court considers assets and financial positions at the commencement of the relationship.
This includes:
property owned prior to the relationship
superannuation balances
existing savings or investments
The significance of initial contributions will depend on factors such as:
the length of the relationship;
whether the contribution was preserved; and
how it compares to contributions made during the relationship
In shorter relationships, initial contributions may carry greater weight. In longer relationships, they may be less significant over time.
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The Court may also consider contributions made after separation, including:
mortgage repayments or maintaining property
financial support of children
improvements to assets after separation
efforts to preserve or increase the value of property
Post‑separation contributions can be particularly relevant where there is a long period between separation and finalisation of the property settlement.
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The Court may also consider situations where one party has:
dissipated assets (e.g. excessive gambling or spending)
reduced the value of the asset pool
failed to disclose assets or financial information
In appropriate cases, the Court may adjust the outcome to account for this conduct.
The Court does not apply a formula or mathematical calculation. Instead, contributions are assessed qualitatively, not just quantitatively. All contributions are weighed together and the Court determines a percentage-based division of the asset pool reflecting overall contributions.
This assessment is highly fact‑specific. Two relationships with similar financial circumstances can produce very different outcomes depending on the roles adopted by each party, the duration of the relationship, the nature of contributions made and the treatment of assets during the relationship.
Step 3 — Consider current and future needs
(s 79(5) / 90SM(5) factors)
The Court then considers the current and future circumstances of each party, and whether an adjustment should be made to ensure a fair outcome moving forward.
This step recognises that, following separation, parties are often in very different financial and personal positions, and a purely contribution‑based division may not be fair.
The Court considers a range of statutory factors, including:
each party’s current income, financial resources and liabilities
earning capacity, including capacity to obtain employment
age and state of health
responsibility for the care of children under 18
the need to provide appropriate housing for children
the standard of living that is reasonable in the circumstances
whether either party is supporting another person
any fact or circumstance that the justice of the case requires
Step 4 — Ensure the outcome is just and equitable
(s 79(2) / s 90SM(2) factors)
The final step is a holistic review of the proposed outcome. The Court must be satisfied that, overall, the result is fair, practical, consistent with the evidence and “just and equitable” in all the circumstances
The High Court in Stanford v Stanford emphasised that the Court must take a structured approach:
first asking whether it is appropriate to alter existing property interests; and
then ensuring that any orders made are justified and necessary
Importantly, the Court does not start from a blank slate — it starts with the parties’ existing legal rights and only alters them where it is just and equitable to do so.
While the four‑step process provides a legal framework, property settlements are not calculated by a formula. The Court’s role is to achieve a fair outcome in the particular circumstances of the case, rather than apply a rigid calculation.
Consent Orders
Where parties are able to reach agreement about property and financial matters, the most common way to formalise that agreement is through consent orders pursuant to the Family Law Act 1975 (Cth).
Consent orders:
are filed with the Federal Circuit and Family Court of Australia;
are reviewed by a Registrar; and
once made, are legally binding and enforceable as Court orders.
The Court will only make consent orders if satisfied that the proposed agreement is just and equitable. This means that even if parties agree, the Court must independently assess whether the outcome is fair in the circumstances.
What consent orders can include
Consent orders can deal with:
transfer or sale of real property
payment of funds between parties
division of bank accounts and investments
superannuation splitting orders
treatment of liabilities and debts
Why consent orders are important
Consent orders provide:
finality and certainty
protection from future claims
enforceability if a party does not comply
Without formalisation (by consent orders or a financial agreement), parties remain exposed to future property claims.
Binding Financial Agreements
Binding financial agreements are private agreements entered into under the Family Law Act.
Financial agreements may be entered into before, during or after a marriage or de facto relationship pursuant to Part VIIIA and Part VIIIAB of the Family Law Act.
When they can be made
A financial agreement may be entered into:
before a relationship (pre‑nuptial agreement)
during a relationship
after separation
Legal requirements
For a financial agreement to be enforceable, strict requirements apply, including:
each party receiving independent legal advice;
certificates of advice being exchanged; and
compliance with formal execution requirements
Failure to comply can render the agreement invalid or unenforceable.
When financial agreements are appropriate
Financial agreements are often used where:
parties want to resolve matters privately without Court involvement
there are complex structures (companies, trusts, farming entities)
asset protection is a priority
They are generally less suitable where there are:
disputes about disclosure
significant power imbalance
concerns about fairness
Superannuation Splitting
Superannuation is treated as property under the Family Law Act but is dealt with separately from other assets.
Unlike cash or real property, superannuation is preserved until retirement (subject to legislative conditions) and held in a regulated fund structure. Because of this, it cannot simply be divided in the same way as other assets.
Superannuation may be split:
by consent orders;
pursuant to a Binding Financial Agreement; or
by Court order after hearing
A split does not create an immediate cash payment, it transfers an interest into the receiving party’s super fund.
Different types of superannuation interests are treated differently and may affect how a split is structured and valued. These include:
Accumulation funds — where the value is based on contributions and investment growth
Defined benefit funds — where value is calculated based on a formula (often more complex)
Self‑managed super funds (SMSF’s) — often requiring careful structuring and valuation
Before any superannuation split is made, accurate information must be obtained.
This generally involves issuing a Form 6 request (or equivalent) to the superannuation fund, obtaining a current valuation of the member’s interest, reviewing the fund’s governing rules and identifying any restrictions or unique features of the interest
Superannuation splitting involves strict procedural steps, including:
procedural fairness to the trustee of the superannuation fund;
serving draft orders or agreements on the fund;
allowing the trustee to review and respond; and
ensuring compliance with the Superannuation Regulations
Failure to comply with these requirements can result in orders being rejected or unenforceable.
The Court can make different types of superannuation orders, including:
Percentage-based splitting orders: a percentage of the superannuation interest is allocated to the other party
Base amount (fixed sum) orders: a specified dollar amount is transferred
Flagging orders: to “freeze” the superannuation interest and prevent payment until a later determination
Time Limits
Strict statutory time limits apply:
Married couples: 12 months from the date a divorce becomes final
De facto couples: 2 years from the date of separation
If a party applies outside these limits, they must obtain leave of the Court.
This requires showing:
hardship would be caused if leave were not granted; and
a sufficient basis to justify the delay
Leave is not granted as of right, and delay can significantly impact prospects.
Pre-Action Procedures
Before commencing Court proceedings, parties must comply with pre‑action procedures under the Federal Circuit and Family Court Rules.
These are designed to encourage early resolution, narrow the issues in dispute and reduce costs and delay.
Pre‑action steps include:
providing full and frank financial disclosure (including assets, liabilities, superannuation and financial resources);
invite the other party to Family Dispute Resolution; and
making genuine attempts to resolve those issues including by sending a written Notice of Intention to Commence Proceedings.
Financial Disclosure Obligations
In all property and financial settlement matters, each party has a legal obligation to provide full and frank disclosure of their financial circumstances both before Court proceedings (as part of pre‑action procedures) and throughout the course of any proceedings.
Disclosure is a continuing obligation, meaning parties must update information if circumstances change.
Disclosure requires each party to provide a complete and accurate picture of their financial position.
This includes:
real estate (including the former matrimonial home and investment properties)
bank accounts and cash holdings
shares, cryptocurrencies and investments
vehicles, valuables and personal property
business interests, companies and trusts
mortgages and loans
credit card debts
tax liabilities
personal or business debts
superannuation interests
trust entitlements
expected inheritances (in some circumstances)
any other financial benefit or resource available
Proper financial disclosure is essential because it ensures that any property settlement is based on accurate information, allows parties to properly assess their entitlements and enables the Court to determine whether a proposed outcome is just and equitable.
Consequences of Non-Compliance
Failure to provide full and frank disclosure is taken seriously by the Court. Consequences may include:
the Court drawing adverse inferences (assuming undisclosed assets exist);
making findings against the non‑disclosing party’s credibility;
adjusting the property settlement in favour of the other party;
setting aside orders or agreements;
costs orders or penalties; and
in serious cases, imprisonment.
Family Dispute Resolution (FDR)
As part of pre‑action procedures, a party considering Court proceedings must:
Invite the other party to participate in dispute resolution; and
Make a genuine effort to attend and engage in the process.
This includes responding constructively to invitations, attending mediation where safe and appropriate and making genuine attempts to resolve issues.
If dispute resolution is successful, the parties should formalise the agreement by:
filing an Application for Consent Orders; or
entering into a Binding Financial Agreement.
Notice of Intention to Commence Proceedings
If a property dispute cannot be resolved through mediation or negotiation, a party intending to commence Court proceedings is generally required to provide a written notice of intention to start proceedings as part of the pre‑action procedures.
A notice of intention must set out:
the issues in dispute between the parties;
the orders sought if proceedings are commenced;
a genuine proposal to resolve the dispute; and
a specified timeframe (at least 14 days) for the other party to respond
The notice should be clear, reasonable and focused on resolving the dispute, rather than escalating it. The receiving party is required to respond within the nominated timeframe. Failure to respond allows the initiating party to proceed to Court.
Court Proceedings
If property and financial matters cannot be resolved by agreement, a party may commence proceedings in the Federal Circuit and Family Court of Australia.
The Court process
A financial case commonly progresses through the following stages:
Filing and service of Court documents
An initiating application and supporting material are filed with the Court and served on the other party.First Court Event / first return date
At the first Court event, the Court usually makes directions to prepare the matter for meaningful dispute resolution. The Court may set a timetable for exchange of outstanding documents and consider whether a single expert report is necessary to help resolve issues efficiently.Court‑based or external dispute resolution
Unless exceptional circumstances exist, the Court commonly directs parties toward dispute resolution (for example, a Conciliation Conference or Judicial Settlement Conference). If a matter is referred for external dispute resolution, the Court may list a Compliance and Readiness Hearing afterwards to ensure the case is ready to proceed to trial if settlement is not achieved.Compliance steps and readiness
The Court may make further directions to ensure financial disclosure is complete and the real issues are properly identified. Non‑compliance can attract cost and procedural consequences.Trial preparation and final hearing (if required)
If the matter does not resolve, the case proceeds through further case management (and sometimes a trial management event) before a final hearing. It is at this hearing that evidence is tested and the Court makes final property orders.
Types of orders the Court can make
The Court can make a wide range of orders to finalise financial matters, including:
Sale or transfer of real estate, and associated steps to give effect to the transfer or sale;
Payment of money between parties;
Division of bank accounts and investments;
Allocation of liabilities (including how debts are to be refinanced or discharged);
Superannuation splitting orders (and related trustee procedural steps); and
Orders dealing with business or trust interests.
Valuations
Financial cases often require expert evidence to fairly determine the value of property or financial interests, and to support settlement or Court determination. This can include:
Real estate valuations (home, investment properties, rural property);
Business valuations (including company and trust interests);
Forensic accounting (complex structures, cashflow, tracing, or disputed transactions); and
Superannuation valuations (particularly defined benefit interests or complex fund structures).
The Court encourages the use of a single jointly instructed expert where practicable, and there are rules around how experts are instructed and how reports are exchanged if separate experts are used.
We guide clients through each stage of Court proceedings with clear advice about what to expect and the practical steps involved.
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