Property Settlement Lawyers Melbourne

How property is divided after separation

There is no automatic 50/50 split in Australian family law, and no formula that produces a number. Instead, the Family Law Act sets out a structured approach that the court works through, and that we work through with you when we negotiate.

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Step one: is an order just and equitable? The court first asks whether it should make any order altering property interests at all. In most separations it should, but it is a real question, particularly in short relationships where each person's finances stayed separate.

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Step two: identify and value the asset pool. Everything you each own, owe or control goes in, whether it is in one name or both, and whether it was acquired before, during or after the relationship. That includes the home, investment properties, vehicles, savings, shares, business interests, trusts, superannuation, inheritances and redundancy payments, less mortgages, loans, credit cards and tax liabilities.

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Step three: assess contributions. Financial contributions, non-financial contributions, and contributions as homemaker and parent are all counted, and the homemaker contribution is not treated as lesser. The court looks at what each person brought in at the start, what they contributed during the relationship, and what they have contributed since separation.

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Step four: consider future needs. The court then adjusts for the parties' respective future circumstances: age, health, income and earning capacity, who has the care of the children, and the effect that the division will have on each person's ability to support themselves.

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Step five: check the result. Finally, the court stands back and asks whether the overall outcome is just and equitable in all the circumstances.

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What changed on 10 June 2025

The Family Law Amendment Act 2024 rewrote the property provisions of the Family Law Act, and the changes commenced on 10 June 2025. Three of them matter to most people.

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The framework the courts had built through case law is now written into the Act itself, so the steps above are set out in the legislation rather than being drawn from decided cases.

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Courts are expressly required to consider the effect of family violence on a party's contributions and on their future circumstances, where that is relevant. Economic abuse and the financial consequences of violence are now squarely part of the property analysis rather than something argued around the edges.

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The duty to give full and frank financial disclosure is now codified in the Act, and the Act also deals specifically with what happens to companion animals.

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These provisions apply to matters that had not been finally determined when they commenced, so they can affect a settlement you started negotiating before June 2025. If your advice predates that, have it reviewed.

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Superannuation, trusts and the assets people forget

Superannuation is treated as property in family law and can be split between you, though it stays in the superannuation system until a condition of release is met. A splitting order or a superannuation agreement is needed to do it, and the fund must be given notice.

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Business interests, family trusts, self-managed super funds and unvested entitlements all need proper treatment rather than a guess at a value. Where a business or trust is in the pool, we work with valuers and forensic accountants so the number you are negotiating over is defensible.

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Debts count too. A settlement that hands you an asset and the liability attached to it is not the win it looks like on paper.

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Time limits you cannot afford to miss

If you were married, you have twelve months from the date your divorce becomes final to apply to the court for a property settlement. If you were in a de facto relationship, you have two years from the date of separation.

 

After those dates you need the court's permission to bring an application out of time, and permission is not automatic. Do not let a limitation date pass while you are waiting for the other side to be reasonable.

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How most property settlements actually resolve

Informal agreement. Quick and cheap, and not binding. It will not stop a claim later.

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Consent orders. The parties agree to the terms, we draft the application, and the court makes the orders without either of you having to go to court. This is the most common way our clients formalise a settlement: it is binding, it is enforceable, and it provides protection against future claims.

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Binding financial agreement. A private contract rather than a court order. Both parties must have independent legal advice for it to be binding. Useful where consent orders do not fit the situation or privacy is important.

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Court proceedings. Sometimes necessary, particularly where the other side will not disclose, will not negotiate, or is disposing of assets. Even then, most matters settle before a final hearing.

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Frequently asked questions

Is property split 50/50 in Australia?

No. There is no presumption of an equal split. The property division reflects the asset pool, each person's contributions and each person's future needs, and the outcome must be just and equitable overall. Equal division happens in some cases, but it is a result, not a starting point.

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What counts as property in a family law settlement?

Everything either of you owns, owes or controls at the time of the settlement, in whatever name it is held. That includes real estate, vehicles, savings, shares, business interests, trust entitlements, superannuation, inheritances and compensation payments, less all liabilities. Assets acquired after separation are still in the pool.

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How long do I have to claim a property settlement?

Twelve months from the date a divorce becomes final if you were married, and two years from separation if you were in a de facto relationship. Out of time applications need the court's permission and may not succeed, so get advice early.

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Can superannuation be split?

Yes. Superannuation is treated as property and can be split by court order or by a superannuation agreement. It generally stays preserved in the superannuation system until you meet a condition of release.

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Do we have to go to court?

Usually not. Most property settlements resolve by negotiation, mediation or consent orders. Consent orders are made by the court on the papers, so neither of you needs to appear.

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Does it matter who caused the separation?

Not in itself. Australian family law is no-fault, and an affair or a decision to leave does not by itself change the division. Family violence is different: since 10 June 2025 the court is expressly required to consider its economic effect where relevant.

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What does a property settlement cost?

It depends entirely on the complexity of the pool and how much the other side co-operates. Consent orders for an agreed settlement cost far less than a contested proceeding. We scope the work and give you a written estimate before we start, and your first 30-minute phone assessment is free.

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Talk to a Melbourne property settlement lawyer

Book a free 30-minute phone assessment, call 1800 976 214, or see us in the Melbourne CBD, on St Kilda Road, in Dandenong or in Pakenham.