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Divorce Property Settlement in Australia

There is no automatic 50/50 split. The court follows four steps to reach a just and equitable result, and we build your case at each one.

In Australia, married couples divide property under section 79 of the Family Law Act, and de facto partners under section 90SM. You can start as soon as you separate, without waiting for a divorce. The court identifies the asset pool, assesses each party's contributions, considers future needs, and checks that the result is just and equitable. Most matters settle by consent orders or a binding financial agreement (BFA) and never reach court.

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Who can apply for a property settlement

How the court divides property: the four steps

The court does not apply a formula. It works through four steps in turn, and the family law amendments that took effect on 10 June 2025 wrote this approach into the text of section 79.

  1. Identify the asset pool

    List every asset and debt held by either party, alone or jointly: real estate, savings, shares, company and trust interests, superannuation, vehicles and cryptocurrency, including assets from before the relationship and assets overseas. Assets are generally valued at the date of the hearing, not the date of separation.

    What this means for you

    Whose name an asset is in does not decide whether it is included. Both parties have a legal duty of full disclosure, and hiding assets invites adverse inferences. Where trusts, companies or hidden debts are involved, gather the financial documents early and, if needed, subpoena them.

  2. Assess contributions

    The court assesses each party's contributions across the whole relationship: financial contributions such as income and property brought in, non-financial contributions such as renovating the home or helping run a business, and contributions to the family such as raising children and running the household. Homemaking counts as much as earning. Where family violence made one party's contributions significantly more arduous, the court must take that into account too.

    What this means for you

    Pre-relationship property, help from parents and inheritances count as contributions by one party, but the longer the relationship, the more they tend to be outweighed by later joint contributions.

  3. Consider future needs

    After contributions, the court looks at each party's circumstances going forward: age and health, earning capacity and income gap, who cares for children under 18, and the effect of any family violence. These factors are set out in section 79(5), and were known as section 75(2) factors before the amendments.

    What this means for you

    A party who spent years out of the workforce caring for the family usually receives an upward adjustment at this step. If the other party can keep drawing benefits from a family trust, the trust can shift the percentages as a financial resource even if it is not part of the pool.

  4. Check the result is just and equitable

    Finally, the court stands back and asks whether the overall result is just and equitable (section 79(2)). If the parties' existing arrangements are already fair, the court can decline to change them at all.

    What this means for you

    Online property settlement calculators cannot give you the answer: the same assets can call for a different fair split in a different family. What the court looks at in the end is whether the result is just and equitable for both parties, not the arithmetic itself.

Two routes: negotiate or go to court

There are two ways to reach a property settlement: the parties agree, or the court decides. Most matters are settled by agreement, and only those that cannot be agreed go to court.

Out of court

Negotiated settlement

How it works
After exchanging financial information, the parties negotiate through lawyers’ correspondence or family dispute resolution, then record the result in consent orders or a financial agreement.
Suits
Parties who can still communicate, where neither side is hiding significant assets.
What to expect
Usually faster and cheaper, and the parties decide the outcome themselves.
Litigation

Court proceedings

How it works
Before filing, the parties are generally expected to attempt family dispute resolution and exchange financial disclosure. A filed matter usually goes through a first hearing and a conciliation conference, and only reaches a final hearing, decided by a judge, if it still does not settle.
Suits
Cases where the other party refuses to negotiate, keeps stalling or hides assets, or the parties are too far apart.
What to expect
Longer and more expensive; while proceedings run, the court can freeze assets and deal with interim expenses.

Once agreed: consent orders or a binding financial agreement?

An agreed outcome only becomes binding once it is recorded in a legal document. There are two common options:

CompareConsent ordersBinding financial agreement (BFA)
Court involvementThe court reviews the terms and makes ordersNo court involvement; signed privately by the parties
Fairness reviewApproved only if the court finds the result just and equitableThe court does not review fairness; a lopsided agreement can still be binding
Independent legal adviceNot mandatory, but recommendedEach party must receive independent legal advice and exchange signed lawyer certificates (section 90G)
When it can be madeAfter separationBefore or during the relationship, after separation, or after divorce
Setting asideOnly on statutory grounds such as fraud, suppression of evidence or impracticability (section 79A)On statutory grounds such as fraud, unconscionable conduct or a material change causing hardship to a child (section 90K); if the signing requirements were not met, the agreement is not binding in the first place
Best suited toParties who have reached agreement and want the court's approval and a stable resultPlanning ahead before or during a relationship, or keeping the matter out of court

Both can split superannuation. Transfers between spouses under court orders or a financial agreement generally qualify for capital gains tax rollover, and most states, including NSW, also exempt these transfers from stamp duty.

Gloria Family Law

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Complex situations and how courts decide

Each answer comes from a real judgment. Read the linked article for the detail.

Your ex is hiding assets and won't disclose?

The court can infer there is hidden money,and give the honest party more as a result. In Zhuo & Ji (No 4), the court gave the wife all known non-superannuation assets and ordered the husband to pay a further $5,886,842 in cash.

Case: Zhuo & Ji (No 4) [2025] FedCFamC1F 22

What to Do When a Spouse Hides Assets in Divorce

Your ex gambled or wasted the money?

Money already spent is no longer added back to the pool,but the court adjusts the division of what remains to compensate you. The Full Court confirmed this post-amendment rule in Shinohara.

Case: Shinohara & Shinohara [2025] FedCFamC1A 126

Spouse Wasted Assets? What Australian Courts Do Now

Does long-term family violence count in a property settlement?

Yes,where family violence made your contributions significantly more arduous, the court must take that into account when assessing contributions. The principle comes from Kennon and, since the 2025 amendments, is written into section 79(4)(ca).

Case: Kennon & Kennon [1997] FamCA 27

How Australian Courts Divide Property: The Four-Step Process (2026)

Your ex inherited from their parents. Do you get a share?

Possibly,an inheritance counts as a contribution by the party who received it, but the court weighs it against everything the other party contributed over the whole relationship. In Singerson & Joans, the husband inherited about $2,600,000 and the wife still received 47.5% of the entire pool.

Case: Singerson & Joans [2014] FamCAFC 238

Inheritance and Divorce in Australia: How Courts Decide

A stay-at-home parent facing a multi-million-dollar pool: only a small share?

Homemaking is not discounted because the pool is large,in Fields & Smith, after a 29-year marriage with a pool of about $32,000,000 to $39,000,000, the Full Court replaced the trial judge's 60:40 with 50:50.

Case: Fields & Smith [2015] FamCAFC 57

Large Asset Pool Divorce in Australia: Do Homemakers Get Equal Share?

The assets sit in a family trust. Are they out of reach?

Not necessarily,trust assets can be included in the pool directly, and even if they are not, the trust can shift the percentages as a financial resource. In Keach, the court made a 30% adjustment in the wife's favour for this reason, and she received 80% in the end.

Case: Keach & Keach [2011] FamCA 192

How Does a Financial Resource Classification Change Property Settlement Ratios?

Time limits: when you must apply

You can start negotiating a property settlement at any time after separation, but applications to the court have strict deadlines.

  1. Separation

    You can start negotiating

    There is no need to wait for a divorce. The parties can negotiate or mediate directly and, once agreed, apply for consent orders or sign a financial agreement.

  2. Divorce order + 12 months

    Deadline for married couples

    Within 12 months after the divorce order takes effect, either apply for consent orders or file a property application in court.

  3. Separation + 2 years

    Deadline for de facto partners

    De facto partners must finalise an agreement or apply to the court within 2 years after the relationship ends (separation).

  4. Out of time

    The court's permission is needed

    After the deadline you must first seek the court's leave, usually by showing that refusing leave would cause hardship to you or a child, and by giving a reasonable explanation for the delay.

Things you can do at any time within the limits

Worried your ex will sell or move assets

You can apply to the court for an injunction to freeze assets and, where you qualify, lodge a caveat on the property.

Can Your Spouse Lodge a Caveat on Your Property in Australia?

Your ex keeps stalling

You can move the matter forward through mediation, court proceedings, or protective steps such as property injunctions and freezing orders.

Ex-Partner Delaying Property Settlement? 3 Legal Options in Australia

A delayed sale has cost you money

If you can show the delay directly caused the loss, the court can adjust the division to compensate you.

Ex Delaying Property Sale? How to Recover Your Losses

How we handle your property settlement

From the first consultation to final orders, a senior lawyer runs your matter.

  1. First consultation

    We learn about the relationship, the assets and any children, and give you an early view of a realistic range and any time-limit risks.

  2. Disclosure and valuation

    We gather both parties' financial documents and, where needed, arrange property valuations, business valuations or forensic accounting to find hidden assets.

  3. Negotiation and mediation

    We put forward a proposal based on the evidence and work towards settlement through correspondence or family dispute resolution.

  4. Formalising the agreement

    We draft the consent orders application or binding financial agreement, and deal with superannuation splitting, property transfers and tax.

  5. Litigation if needed

    If your ex will not cooperate or agreement cannot be reached, we file in the Federal Circuit and Family Court on your behalf and seek injunctions to protect assets where needed.

Frequently Asked Questions

The basic rules

Can we divide property before we divorce?

Yes. Property settlement and divorce are separate processes. You can start negotiating a property settlement, or apply to the court for property orders, as soon as you separate.

How long after separation do I have to apply to the court?

You can negotiate at any time after separation. If you need to apply to the court, married couples must apply within 12 months after the divorce order takes effect, and de facto partners within 2 years after separating. After that, you need the court's permission.

See: How Long After Separation Can You Claim Property in Australia?
Is property always split 50/50?

No. Australian law has no 50/50 starting point; the percentages depend on each party's contributions and future needs. Real judgments range from 50:50 after long marriages to 95:5 after short relationships.

See: 70/30 Divorce Settlement Australia: What Courts Order (2026)
How does the court decide the percentages?

The court follows four steps: identify the asset pool; assess financial and non-financial contributions; consider each party's future needs; and check that the overall result is just and equitable. See "How the court divides property: the four steps" above.

See: How Australian Courts Divide Property: The Four-Step Process (2026)
Does an affair affect the property settlement?

No. Australia has a no-fault system, and the court does not adjust the percentages because of an affair. However, if one party spent joint funds on the affair, that spending may be treated as wastage.

If one of us had no income, will that person get more?

Not necessarily, but homemaking and parenting are treated as substantial contributions, and a gap in earning capacity is considered at the third step. The court weighs everything together; no single factor usually decides the outcome.

See: Large Asset Pool Divorce in Australia: Do Homemakers Get Equal Share?

The asset pool and valuations

What is included in the asset pool?

Both parties' assets and liabilities, whether acquired before or during the relationship and whether in Australia or overseas. Common items include real estate, cash, vehicles, shares, companies, trust interests, superannuation, cryptocurrency and debts.

My name is not on an asset held by my ex. Is it still in the pool?

Yes. The pool includes everything held by either party, alone or jointly. Whose name is on the title does not decide whether it is included.

Can my ex get a share of what I owned before the relationship?

Possibly. Pre-relationship assets are counted as an initial contribution by the party who brought them in, but the longer the relationship and the more the parties contributed afterwards, the less weight they tend to carry.

See: Do Initial Contributions Still Count Years Later?
How are overseas assets dealt with?

They must be disclosed and included in the pool, usually with expert evidence and valuations. Australian courts deal with overseas assets by default, unless Australia is clearly an inappropriate forum or a foreign judgment has already dealt with the same property.

See: How Australian Courts Treat Overseas Assets in Divorce
Who values the property?

The parties can agree on a market value between themselves. If they cannot agree, a registered valuer assesses it, and it is common for both parties to jointly instruct one valuer.

How is a business valued?

The parties can agree on a value themselves. If they cannot, companies and businesses need an independent valuation that considers goodwill, cash flow, assets and liabilities.

Can superannuation be split?

Yes. Superannuation is part of the pool and can be split by consent orders or a financial agreement, moving part of one party's balance into the other's account. The split amount generally stays subject to the preservation rules and can only be withdrawn once a condition of release is met.

The home

The house is in both our names. Does it have to be 50/50?

No. How the title is registered does not decide the split; the court looks at contributions and future needs.

See: Divorce Property Settlement in Australia: Case Examples
Can I buy out my ex's share of the house?

Yes. If you both agree, you can buy out your ex's interest based on a valuation. The key question is whether you can refinance in your own name.

Can I ask for the house to be sold?

You can raise it in negotiation or in court, but the property usually needs to be valued first, and the children's living arrangements are taken into account.

Can I get a sole occupancy order?

A sole occupancy order under section 114 is a serious order with a high threshold. But where the parties cannot reasonably and practically keep living together, particularly where children's welfare is involved, there is still room to apply.

Do I pay stamp duty or capital gains tax when property is transferred in a settlement?

Transfers between spouses under court orders or a financial agreement generally qualify for capital gains tax rollover, so tax is worked out only when the receiving party later sells; most states, including NSW, also exempt these transfers from stamp duty. Informal transfers made outside these arrangements may miss out.

See: Capital Gains Tax in Divorce: The Marriage Breakdown Rollover Explained

Agreements and orders

What is the difference between consent orders and a binding financial agreement?

Consent orders are reviewed and approved by the court, which must find the result just and equitable; they are very stable and suit parties who have reached agreement after separation. A binding financial agreement is a private contract with no court involvement, but each party must get independent legal advice; it can be used for planning before a relationship or for a settlement after separation. See the comparison table in "Three ways to resolve it" above.

See: Is Your Binding Financial Agreement Actually Binding?
Can an agreement be changed after it is signed?

Not at will. Consent orders can only be set aside or varied on statutory grounds such as fraud, suppression of important information or impracticability (section 79A). A financial agreement can be terminated by a further agreement between the parties, or set aside by the court on the grounds in section 90K.

See: When Can a Financial Agreement Be Set Aside in Australia?
Can I appeal a property decision I am unhappy with?

Yes, but the bar is high. A decision is overturned only if the judge made a material error of law, of fact, or in exercising their discretion; feeling that you received too little is not in itself a ground of appeal. An appeal generally has to be filed within 28 days of the decision.

See: Can You Appeal a Family Court Property Decision in Australia?

Special circumstances

What if my ex is hiding assets?

You are entitled to full financial disclosure from your ex, and you can subpoena records from banks and companies. If your ex keeps refusing to disclose during proceedings, the court can infer that undisclosed assets exist and make orders favouring the honest party.

See: What to Do When a Spouse Hides Assets in Divorce
Am I responsible for credit card spending by my ex after separation?

It depends on what the money was spent on, whether it was necessary and whether it was reasonable. Reasonable living expenses may be treated as necessary spending after separation; deliberately running up debt may leave the spender to carry it alone.

See: Is Post-Separation Spending Considered Waste in Australia?
Do gambling, wastage or family violence affect the property settlement?

Yes. Where family violence made your contributions significantly more arduous, the court must take it into account when assessing contributions (section 79(4)(ca)), and must also consider its effect on your future circumstances (section 79(5)(a)). Where assets were deliberately or recklessly wasted, the court adjusts the division of what remains to compensate (section 79(5)(d)).

See: Is Gambling Considered Wastage in Australian Divorce?
How long do you need to live together in Australia before property is divided?

Generally 2 years in total. If you have a child together, one partner made substantial contributions and not making an order would cause serious injustice, or the relationship was registered with a state, you can apply even if you lived together for less than 2 years.

See: De Facto Property Settlement After On-Off Separations
How long does a property settlement usually take?

Where both parties cooperate and the assets are straightforward, reaching agreement and obtaining consent orders usually takes a few months. Complex asset pools or matters that go to court often take more than a year. Completing disclosure and valuations early is the most effective way to shorten the process.

I cannot afford a lawyer. Will my ex have to pay my legal fees?

Generally each party pays their own legal costs. But where one party controls most of the assets and the other cannot afford representation, the court can order the wealthier party to pay part of the other's legal costs in advance.

See: When Does the Other Side Have to Pay Your Legal Fees?
My ex has gone bankrupt. Can I still get a property settlement?

Yes. The trustee in bankruptcy joins the property proceedings as a third party, but you can still claim your share under section 79, and assets in your own name do not automatically become part of your ex's bankrupt estate.

See: How Does Bankruptcy Affect Property Settlement in Australia?See: Spouse Goes Bankrupt in Australia: Are Your Assets Safe?

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FOUR STEPS

How Australian Courts Divide Property: The Four-Step Process (2026)

Under section 79 of the Family Law Act 1975, Australian courts divide property using a four-step process based on contributions, future needs, and fairness.

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PERCENTAGES

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