Property Settlement In Family Law

"Will I get 50 percent of the assets upon divorce?"
Answer: Not necessarily.

What is considered 'Property'?

'Property' includes all tangible and intangible assets owned by the parties to a marriage or a de facto relationship. These assets may be owned individually by a party or jointly with their partner/spouse. Examples of such properties may include cash, company shares, vehicles, jewellery, family trusts, businesses, savings, family home, inheritances, superannuation, mortgage loans, personal debts, etc.

How is 'property' divided, and what are the relevant considerations?

Contrary to common myth, a 50/50 split of assets upon separation or divorce is never a starting point for property division. The Family court takes various factors into consideration before deciding what share or percentage of assets a party will receive. These considerations, for example, may include:

the assets owned by a party at the time of the court hearing
worth and nature of financial contributions made by each party during the marriage or relationship
the length of the marriage or de facto relationship
non-financial contributions (such as unpaid work at home and/or taking care of children)
future needs of the parties
need to pay spousal maintenance to a party.

Two Common Approaches In Property Settlements

Generally, two approaches are taken by family courts in property settlement matters:

Global Approach,
Asset by Asset approach.

In cases involving long-term relationships, Courts prefer the Global (asset pool) approach in deciding property settlement matters. However, in short-lived relationships, an asset-by-asset approach may be adopted.

Family Law Courts Approach To Property Settlement Process

When resolving property matters, the family law courts follow a structured approach:

Identifying Assets and Liabilities – Determining all property and debts belonging to both parties.
Assessing Contributions – Evaluating each party’s financial and non-financial contributions to the property pool and family welfare.
Considering Future Needs – Taking into account factors such as each party’s age, health, financial resources, and the care and housing needs of any children.
Ensuring Fairness – Making orders that are just and equitable based on the overall circumstances.

Couples negotiating a property settlement outside of court are encouraged to follow this same process.

Family Violence and Property Settlements

From 10 June 2025, family law courts must consider the economic impact of family violence, including financial abuse, when deciding property settlements. This may affect assessments of contributions and future needs, such as employability or ongoing rehabilitation and recovery costs. However, courts cannot issue criminal sentences, compensation for suffering family violence, or protection orders (such as Family Violence Intervention Orders) for family violence—these matters remain under state and territory jurisdiction.

Family Pets in Property Settlements

Separating couples can agree on pet arrangements privately. If no agreement is reached, the courts will consider factors such as animal abuse and emotional attachment before making orders. From 10 June 2025, courts cannot order shared ownership or joint possession of pets.

Things to Note In Property Settlement Matters

In property settlement matters, the following fundamental principles must be noted:

Parties have an ongoing duty of ‘full and frank' disclosure of all the assets under the Family Law Act 1975. Hiding assets from the court or other party may reflect badly on the credibility of the party guilty of hiding assets. There may be other consequences for not disclosing assets in such proceedings, such as cost orders by the court or reversal of the existing orders.
There is no requirement that assets must be sold to split them up. Often, these issues may be resolved without selling the assets if the parties are cooperative. Parties may resolve their issues surrounding property through mutual (formal or informal) agreements or 'Consent Order' (which is a formal written agreement approved by the court and it has the same effect as a court order).
The assessment of financial contributions is not a rigid and inflexible mathematical exercise. In deciding the shares of the parties, the courts try to ensure that the division is 'appropriate' and overall 'just and equitable'.
In a long-lasting marriage, when income and resources are devoted to the family's benefit, a detailed accounting of financial contributions is considered impossible and inappropriate.
Property Settlement is considered before Spousal Maintenance. Property Settlement received by one party is considered a relevant factor in Spouse Maintenance proceedings.

Time Limitations

Property Settlement claims must be brought:
- If married relationship – within 1 year after divorce order coming into force.
- If de facto Relationship – within 2 Years after the date of separation.

A party does not need to be 'divorced' or separated to initiate property settlement proceedings in a court. Property settlement proceedings may also be initiated during the relationship or anytime before divorce or separation.

It is always advisable to seek legal advice and assistance before initiating property settlement proceedings in court or entering into an agreement with your spouse/partner to understand your obligations and rights fully.

Warning! No information provided on this website in relation to Australian laws, policies, procedures, directions (or any other matter) is intended to be legal advice. The relevant laws, policies, procedures, etc., for specific types of proceedings, may differ from jurisdiction to jurisdiction. You must seek legal advice on issues specific to your situation and circumstances. Please read our Terms and Conditions.