Property Settlement After Separation: How Assets Are Divided in Australia (2026)

Australian family law does not use a formula and does not start from 50/50. Instead, the Federal Circuit and Family Court of Australia (FCFCOA) follows a four-step approach that, since 10 June 2025, is written directly into the Family Law Act 1975 (section 79 for married couples and section 90SM for de facto couples). The same approach guides couples negotiating outside court, because any agreement still needs to be 'just and equitable'.

The four steps are:

• Step 1 - Identify and value the pool: list everything you both own and owe, regardless of whose name it is in. This includes the family home, savings, vehicles, businesses, investments, superannuation, inheritances and debts such as mortgages, loans and tax owing.
• Step 2 - Assess contributions: weigh each person's financial contributions (wages, assets brought in, gifts, inheritances), non-financial contributions (renovations, unpaid work in a business), and contributions to the welfare of the family as homemaker and parent. Homemaking and parenting count, they are not treated as lesser.
• Step 3 - Consider current and future circumstances: look at age, health, income and earning capacity, who cares for the children, and other factors that mean an equal split may not be fair. These were previously the 'section 75(2) factors' and now sit in section 79(5).
• Step 4 - Check it is just and equitable: stand back and ask whether the overall outcome is fair in all the circumstances. The court does not have to make any order at all if the existing arrangement is already fair.

The result is expressed as percentages of the net pool (for example, 60/40), which are then turned into a practical division of specific assets. Because so much turns on the facts, no one can tell you exactly what a court would order, though an experienced family lawyer can usually estimate a likely range.

The Family Law Amendment Act 2024 made significant changes to property settlements that commenced on 10 June 2025. These changes apply to all separating couples, whether they go to court or negotiate privately, so they affect almost everyone settling now.

The headline changes are:

• Family violence is now relevant to property: the court must consider the economic effect of any family violence one party was subjected to. This includes financial or economic abuse, such as restricting access to bank accounts, controlling a partner's spending, sabotaging their employment or income, or dowry-related abuse.
• Wastage of assets is expressly considered: where a party intentionally or recklessly wasted property or financial resources, the court can take that into account. The previous 'add-back' practice has changed, but wasted money can still count against the person responsible.
• Liabilities and housing needs are spelled out: the court must consider the effect of any proposed order on each party's debts and on the housing needs of any children.
• Companion animals (pets): the law now defines a pet and lets the court order sole ownership, transfer to one party, or sale, but it cannot order shared ownership or shared care of a pet.
• Duty of disclosure in the Act: the long-standing obligation to give full and frank financial disclosure is now written into the Family Law Act itself (see the disclosure section below).

If you separated before 10 June 2025 but have not yet finalised your settlement, the new rules generally apply to your case going forward, so it is worth confirming how they affect you before signing anything.

Property settlement has strict time limits under section 44 of the Family Law Act 1975, and they are easy to miss because they run separately from getting divorced.

For married couples, you have 12 months from the date your divorce order takes effect to apply for property or spousal maintenance orders. Note that you cannot even apply for a divorce until you have been separated for at least 12 months, so the property clock and the divorce are two different things.

For de facto couples, you have 2 years from the date of separation to apply. (In Western Australia, de facto matters run under the WA Family Court Act 1997, but the 2-year limit is similar, so check the WA position.)

If you are out of time, you can still proceed if the other party consents, or if the court grants permission ('leave') to apply out of time. The court will only do this if refusing would cause hardship to a party or a child, and getting leave is not guaranteed, so do not rely on it. The safest course is to formalise your settlement within the time limit, even if you reached an informal agreement years earlier, because an unformalised agreement is not binding.

Married couples can seek a property settlement regardless of how long the marriage lasted. The right to a settlement is not affected by who 'caused' the separation, as Australia has a no-fault system.

De facto couples (including same-sex couples) generally need to meet a threshold before a court can divide property, set out in section 90SB of the Family Law Act 1975. A court can only make a property order if at least one of these applies:

• The relationship lasted at least 2 years in total (it can be more than one period that adds up to 2 years).
• There is a child of the relationship.
• One party made substantial contributions and serious injustice would result if no order were made.
• The relationship was registered under a state or territory relationship register.

Whether a couple was genuinely 'de facto' is decided on factors such as living arrangements, financial interdependence, a sexual relationship, and how the couple presented publicly. Being in a de facto relationship gives broadly the same property rights as marriage in most of Australia.

Western Australia is the exception. WA did not refer its powers to the Commonwealth for de facto matters, so de facto property and maintenance are decided under the WA Family Court Act 1997 in the Family Court of Western Australia. Married couples in WA still use the federal Family Law Act. If you are in WA, confirm which regime applies to you.

Superannuation is treated as property under the Family Law Act and can be divided between separating partners, even though you usually cannot access it until retirement. This matters a lot where one partner (often the primary carer) has a much smaller balance because they stepped back from paid work.

Splitting super does not mean cash changes hands now. A 'splitting' transfers an agreed amount from one person's super interest into the other person's super, where it stays subject to the usual preservation rules until a condition of release is met.

You can split super by agreement (recorded in consent orders or a financial agreement) or by court order if you cannot agree. To value the interest, you can ask the fund for information using the Superannuation Information Request Form accompanied by a Form 6 declaration, available in the FCFCOA Superannuation Information Kit. Some funds, particularly older defined-benefit schemes, require a specialist valuation.

Because super is often one of the largest assets after the family home, do not overlook it in any settlement.

You do not have to go to court to divide your property. The Attorney-General's Department and the FCFCOA both encourage couples to reach agreement and formalise it, because an informal 'handshake' deal is not legally binding and does not protect you if your ex changes their mind or makes a later claim.

There are three main options:

• Informal agreement: quick and free, but not enforceable and does not finalise things. It also does not deal cleanly with super or capital gains/stamp duty relief.
• Consent orders: you write up your agreement and ask the court to approve it without a hearing, using an Application for Consent Orders. The court checks the agreement is just and equitable. The FCFCOA filing fee is $205 from 1 July 2025 (reviewed each year, usually rising with CPI), with exemptions for concession-card holders or financial hardship. This is the most common and cheapest way to make an agreement binding.
• Binding financial agreement (BFA): a private contract that can be made before, during or after a relationship. It is not filed with the court, but to be binding each person must receive independent legal advice from their own lawyer about the agreement's effect, advantages and disadvantages (section 90G). That legal advice requirement is strict, and courts can set a BFA aside, for example for non-disclosure, duress or unconscionable conduct (section 90K).

If you cannot agree, you generally must attempt dispute resolution (such as mediation) and follow the court's pre-action procedures before filing a court application. Going all the way to a contested hearing is the slowest and most expensive route, so it is usually a last resort.

Both parties have a duty to give full and frank financial disclosure of everything relevant to the property pool, including income, assets, debts, superannuation, businesses and trusts. Since 10 June 2025 this duty is written directly into the Family Law Act, reinforcing how seriously the courts take it.

Disclosure is ongoing, not a one-off. If your financial position changes while you are negotiating or in proceedings, you must update the other side. It applies whether you settle privately or in court.

Hiding assets is a bad idea. The consequences of non-disclosure can include costs orders against you, the court adjusting the property division in the other party's favour, an agreement or consent order being set aside later, and in serious cases findings of contempt of court.

Practically, this means gathering bank statements, tax returns, payslips, loan statements, super statements and business records early. Good disclosure speeds up settlement and reduces legal costs for both sides.

You are not required to use a lawyer, and many couples reach agreement with minimal legal help. But family law is fact-specific and the 2025 changes are significant, so independent advice can be valuable, especially where there is a business, a trust, significant super, family violence, or a large gap in earning capacity.

Some situations effectively require a lawyer. A binding financial agreement is only valid if each party has received independent legal advice from their own practitioner, so you each need a separate lawyer. Consent orders do not legally require a lawyer, but having one draft or review them helps ensure they are 'just and equitable' and will be approved.

When choosing a lawyer, you can look for an Accredited Specialist in family law through your state or territory law society's specialist accreditation register, and independent rankings such as Doyle's Guide. Accreditation means the lawyer has passed additional assessment in family law.

If cost is a concern, Legal Aid commissions in each state and territory, community legal centres and the FCFCOA's own self-represented resources can help. Many family lawyers also offer a fixed-fee initial consultation. This guide is general information, not legal advice for your situation, so confirm current fees, forms and thresholds at the official sources before acting.