Separating and can't agree on assets? Get a fair property settlement.

Australian courts apply a four-step process when determining property settlements. Step 1 is identifying and valuing the asset pool — all assets, liabilities, and financial resources of both parties, wherever located. Step 2 is assessing the contributions of each party — financial contributions such as income, assets brought into the relationship, and inheritances, as well as non-financial contributions such as homemaking, parenting, and supporting the other party's career. Step 3 is considering the future needs of each party — including age, health, earning capacity, care of children, and the effect of the relationship on future prospects. Step 4 is the just and equitable test — a final check that the proposed outcome is fair overall. The outcome is a percentage split, which is then applied to the asset pool. Rarely is the result exactly 50/50.

For married couples, an application for property settlement must be made within 12 months of a divorce order taking effect. For de facto couples, the application must be made within 2 years of the de facto relationship ending. These deadlines are strict — missing them means you cannot apply without leave (permission) of the court, which is not automatic and requires you to show that hardship would result from not granting leave. The time limits apply even if negotiations are ongoing or you believe a settlement is close. Seeking legal advice before the deadline — not after — is essential.

Both consent orders and binding financial agreements (BFAs) are ways of formally documenting an agreed property settlement. Consent orders are filed with the Federal Circuit and Family Court, which reviews them and — if satisfied they are just and equitable — makes them orders of the court. They provide strong enforceability and stamp duty exemptions on property transfers. A binding financial agreement is a private contract between the parties that does not go before a court. BFAs offer more flexibility but require both parties to obtain independent legal advice and carry a higher risk of being set aside if not prepared correctly. For most separating couples, consent orders are the preferred option.

Superannuation is treated as property in Australian family law and is included in the asset pool. Courts cannot order the immediate payment of superannuation as cash (because it is preserved until retirement), but they can split a superannuation interest — meaning a portion of one party's super is transferred into a fund in the other party's name. Superannuation splitting requires a specific splitting agreement or order that complies with the Superannuation Industry (Supervision) Act and is served on the relevant superannuation fund. Where one party has significantly more superannuation than the other — often where one stayed at home or worked part-time — a super split can substantially improve the financial outcome for the receiving party.

For modest asset pools, the cost of litigation can quickly approach or exceed the value of the assets in dispute — making litigation financially irrational for both parties. In these situations, a lawyer will typically advise focusing on negotiated resolution through correspondence, mediation, or a collaborative process. Where an agreement is reached, consent orders can be prepared efficiently and at relatively low cost. Even in small pool matters, having legal advice before agreeing to terms protects you from inadvertently signing away important entitlements. A good family lawyer will give you a realistic cost-benefit assessment at the outset.

Under section 79A of the Family Law Act, a court can set aside or vary existing property settlement orders in limited circumstances. These include where there has been a failure to disclose a material asset, fraud, duress, or misrepresentation, or where circumstances have changed so significantly since the order was made that enforcement would be impracticable or unjust. Setting aside a settlement is genuinely difficult — courts take the finality of property settlements seriously — but it is not impossible where there has been clear misconduct or a fundamentally changed situation. If you believe your settlement was obtained unfairly or on the basis of false information, a lawyer can assess the prospects of a setting aside application.