Documenting a property settlement, and why it matters

What documenting actually buys you

Finality

This is the main one. An undocumented agreement leaves the door open. Your former partner can bring a property application within the limitation period, and can seek leave to bring one outside it. Consent orders or a binding financial agreement close that door.

That matters most where circumstances change. A person who agreed to a modest split while unemployed may see things differently when you sell a business four years later.

A complete record of what was agreed

The process of documenting forces every asset and liability onto a balance sheet: superannuation, tax debts, personal loans, an interest in a family trust, a car under finance. In our experience, the items missed in informal agreements are almost always superannuation and debt.

Enforceability

If the other party does not do what they agreed, a documented settlement gives you something to enforce. Consent orders can be enforced by the court directly. A binding financial agreement is enforced as a contract, which is slower but still available.

With no document, there is nothing to enforce.

Tax and duty treatment

Transfers of property between separating parties can attract concessional treatment for transfer duty and capital gains tax, but only where the transfer is made under a court order or a binding financial agreement. A handshake arrangement can turn a straightforward transfer into an assessable event.

Get accounting advice on this before signing. The concessions are valuable and easy to lose.

The two ways to do it

Consent orders

An application for consent orders asks the court to make orders in the terms you have agreed. Nobody attends court. A registrar considers whether the orders are just and equitable and, if so, makes them.

Advantages: enforceable directly, generally cheaper, and both parties do not need separate lawyers as a matter of law, though it remains sensible.

Limitation: the court can decline to make the orders if it is not satisfied they are just and equitable.

Binding financial agreements

A contract under the Act, made without any court involvement. Both parties must receive independent legal advice from an Australian legal practitioner, and signed statements of advice must be exchanged.

Advantages: no court scrutiny of the fairness of the deal, and available where consent orders would not be made.

Limitation: enforced as a contract, and vulnerable to being set aside where the process was defective. See our article on binding financial agreements.

The current framework

Since 10 June 2025 the provisions a court applies to property are in section 79(5) of the Family Law Act 1975 (Cth) for married couples, with equivalent provisions for de facto couples.

The framework identifies the property and liabilities, weighs the contributions of each party, considers the current and future circumstances of each, and asks whether the proposed division is just and equitable. The effect of family violence on a party’s contributions and on their future circumstances is now expressly included, as is the effect of wastage of assets.

If you agreed a division before June 2025 and never documented it, have it checked against the current provisions before it is filed.

Do not wait

Two clocks run.

• Married couples: an application must be made within 12 months of a divorce order taking effect.
• De facto couples: within 2 years of the end of the relationship.

Outside those periods you need the court’s permission, which requires showing hardship and is not routinely granted.

There is also a practical reason to move quickly. The pool is valued at the date of the hearing, not the date of separation. An agreement reached today and documented in three years is measured against a very different balance sheet.

If you need help documenting a settlement, see our page on property settlement or speak to our family law team.