Property settlement after separation

The four steps, in plain terms

The four-step approach came out of the case law and, since 10 June 2025, sits in section 79 itself for married couples and section 90SM for de facto couples.

1. Identify and value the pool. Everything either of you owns, alone or jointly, wherever it is, plus superannuation, minus liabilities. Inheritances, redundancy payments, compensation payouts, cryptocurrency, an interest in a business, a trust, an unpaid loan to a relative. It all goes on the list first and gets argued about second.
2. Assess contributions. Financial contributions such as wages, savings and gifts. Non-financial contributions such as renovating the house. Contributions as homemaker and parent, which are not treated as lesser. Contributions at the start of the relationship, during it, and since separation.
3. Assess current and future circumstances. Age, health, income and earning capacity, care of children under 18, the effect of the relationship on earning capacity, liabilities, housing needs, and the economic effect of any family violence. These are in section 79(5), the provision that replaced the old cross-reference to section 75(2).
4. Check the result is just and equitable. Section 79(2) is a standing requirement, not a rubber stamp. If the numbers produce an unfair result, the court does not make the order.

A long marriage with similar contributions and no children often does land near equal. A short relationship where one party brought in most of the assets rarely does. A long marriage where one parent stayed home and now has no superannuation and reduced earning capacity often produces a split well away from half.

What changed on 10 June 2025

The Family Law Amendment Act 2024 (Cth) restructured the financial provisions. The framework did not change direction, but several things that used to be argued from case law are now written down.

• Family violence. The court must consider the effect of family violence on a party's ability to make contributions, and its economic effect on their current and future circumstances. Economic and financial abuse is defined more broadly, including sabotaging someone's employment.
• Wastage. Property or financial resources intentionally or recklessly wasted, in a material way, can be taken into account. Gambling, hiding money, and spending on a new relationship are the usual examples. The test is deliberately stricter than a general complaint about spending.
• Liabilities and housing. The nature and effect of debts, and the need to provide appropriate housing for a child under 18, are expressly listed.
• Companion animals. The court can order that one party keeps the pet, or that it be sold or transferred. It cannot order joint ownership or a shared care arrangement for an animal.
• Disclosure. The duty to give full and frank financial disclosure, and to keep it up to date, now sits in the Act. Lawyers and dispute resolution practitioners must explain it to you. Failing it can cost you a costs order, an adverse inference, or a set-aside of the final orders.

Superannuation, and the things people forget

Superannuation is property for family law purposes and can be split by order or agreement. It does not become cash. A split moves an amount from one member's interest into the other's superannuation account, where it stays until a condition of release is met. Defined benefit interests are valued under a prescribed method and are frequently worth far more than people assume.

Commonly missed items

• Long service leave and accrued entitlements.
• A pending compensation, insurance or workers compensation claim.
• Company shares, unit trusts and cryptocurrency wallets.
• A business, its goodwill and any loan accounts.
• Money lent to family with a vague promise of repayment.
• Debts held only in one name that still funded the household.
• Gifts or inheritances received after separation, which are still relevant.

The pool is generally assessed at the date of the agreement or hearing, not the date of separation. That is why a delayed settlement in a rising market changes the numbers, and why "we agreed on this two years ago" is not the end of the discussion.

Time limits and getting the deal documented

Married couples have 12 months from the date a divorce order takes effect to start property proceedings, under section 44(3). De facto couples have two years from the end of the relationship, under section 44(5). Out of time, you need the court's leave, and you have to show hardship.

If you have not divorced, there is no property deadline running for a married couple, which is why some people leave it for years. That is not safe either. Assets change, debts accumulate, and evidence about contributions gets harder to reconstruct.

An agreement is not binding because it is in writing or because you both signed it. It becomes binding through consent orders or a binding financial agreement. Only a properly documented settlement gives you the stamp duty relief on transfers between spouses, the capital gains tax rollover, and the ability to enforce it when someone changes their mind.