Family Law Property Division

Whether you want to keep your home, protect your business or have complex corporate and family trust structures, our commercially-focused team will help you to get your ideal outcome.

When it is time to divide your property following separation, you have one chance to set up your financial future. Maximise your outcome with our leading team of Specialist Family Lawyers.

Our Family Lawyers will help you to understand how the property division process works and how some key strategies can help you to get the best outcome possible. We work with you to understand what your property pool consists of, what you want to keep, and advise you on the optimal path forward to achieve your objectives.

After assessing your situation and the property pool relevant to your relationship, our Family Lawyers explain to you how your potential entitlement to the property pool is calculated and the factors that can improve your outcome.

Why Early Legal & Financial Advice is Critical

The things you do at the very beginning of your Family Law property matter can have a profound impact on the way your matter runs. You need to know early on what your rights and obligations are under the Family Law Act so that you can put yourself in the best position to achieve a favourable outcome.

Before you begin to negotiate a Family Law Property Division it is important to know what you can and cannot achieve in terms of a final Property Division. For example, if you would like to retain the former matrimonial home, you need to ascertain your borrowing capacity. Additionally, you need to be aware of any taxation issues, including capital gains tax liabilities, that crystalise as a result of a distribution of your property pool.

We can refer you to one of our trusted financial advisors and together we can identify and advise you about the best way to structure your Family Law Property Division.

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Fixed Fee Smart Start Appointment

Your Smart Start Family Lawyer will answer all your questions, explain the law and legal processes, provide on-the-spot tailored advice and help you develop a plan for moving forward.

$350 incl. GST 90-Minute Consultation

How is Property Divided after Separation?

4–step process:

Step 1: What is the property pool available for division?

The Property Division process starts by working out what each spouse owns. This includes items like cars, bank accounts and real estate and also businesses and trusts.

All the property to which the couple is entitled to is in the property pool for division between them. The property may be owned by a spouse individually, jointly with the other spouse or jointly with other people.

The types of assets and debts that are usually in the property pool are:

Assets: House, Cars, Bank Accounts, Furniture and Furnishings, Jewellery, Shares (in a publicly listed company such as Telstra, or in private company such as the trading company of the family business), Family Trust (this may be where the Family Trust owns the family business).

Superannuation is also included in the property pool available for division.

Debts: Home loan, credit card, personal loan, consumer credit.

How to find out about your ex-partner’s property
Parties have a duty to the Court and to each other to make full and continuing disclosure of their financial circumstances that are relevant to an issue in dispute.

If you and your ex-partner reach an agreement, or the Court makes Orders, where full financial disclosure has not been made, there is a risk of a penalty for the non-disclosing person or that the agreement or Orders will be set aside by the Court.

In addition, a Family Lawyer cannot assist a client to hide assets or to continue to act for a client where they know the client is not making full disclosure.

Even where a person does not provide full financial disclosure, any transfers of money or property can generally be traced by obtaining the relevant documents under Subpoena. Where assets have been transferred to other people to defeat a Family Law property claim, the law provides that these assets can be “clawed back” into the property pool available for division.

The exception to this is cash: dealings in cash are difficult to trace and therefore difficult to claw back. If you are aware that your ex-partner has dealt with cash, photographic evidence of large amounts of cash, such as cash that they have stored in a box in the home, can assist you to prove this later.

Valuing the assets

For the purposes of a Property Division, assets are valued at the current market value at the date of the division. Therefore, the value of the assets must be at the current market value at the time they are being valued, not their value at separation or some other date.

Where each party wishes to retain certain assets from the property pool, it stands to reason that they want to keep the valuation of that asset as low as possible – the lower the value of the assets they are keeping, the more they will get of the remaining property pool to make up the percentage they are entitled to.

Where significant assets, such as real estate or business interests, are part of the property pool, there can be a difference in the respective positions of each party of hundreds of thousands of dollars.

When parties do not agree on the value of an asset, an indication of value (such as a real estate market appraisal, a Red Book valuation, or a receipt (for smaller items such as furniture or jewellery), will often resolve the dispute.

If the dispute continues, an expert valuation report may help to settle the dispute, but not always. Occasionally, each party will have expert valuation reports that give differing values. Therefore, before ordering a valuation report, the parties should agree on the valuer to be appointed, pay equally for the report and agree to be bound by the value provided in their valuation so as not to waste money on valuation reports which are disputed by the other party.

Even where the parties have obtained a joint valuation report, disputes about value can continue on the basis that the valuation report was not properly prepared. Sometimes, a valuation dispute will not be resolved until a final Court hearing where a Judge will make a decision, based on the evidence, of the current market value of the asset.

Step 2: What contributions has each person made to the property pool?

Work out what each person has contributed to the acquisition, conservation and improvement of the property pool. Contributions are relevant in relation to all property the parties have owned at cohabitation, during the relationship and since separation, including assets that are no longer owned. Contributions must be one (1) or more of the following types of contributions:

Direct Financial Contributions

A direct financial contribution is a payment made by a spouse directly towards the purchase, conservation and/or improvement of an asset.


The equity owned in a house at the start of the relationship.
Using one’s own income to make mortgage repayments.
Using an inheritance to pay off the home loan, as savings or to purchase other assets.

Indirect Financial Contributions

An indirect financial contribution is a payment made towards expenses so that the other party’s income can be instead applied to a direct financial contribution.


A spouse paying living expenses with their wage so that the other spouse can use their wage to make mortgage repayments.

A spouse paying for a holiday while the other spouse accumulates their income as savings in a bank account.
A parent of a spouse allowing the couple to live in their home rent-free so that the couple can use their income to make mortgage repayments on their own property.

Direct Non-Financial Contribution

A direct non-financial contribution is work done by one (1) of the parties to maintain or improve an asset without making a payment towards it.


  • Doing renovation works to a property.
  • Looking after the maintenance of a home’s exterior.
  • Maintaining and operating a stock trading account.

Indirect Non-Financial Contribution

An indirect non-financial contribution is work done by one (1) of the parties that is not done directly to an asset and is not of a financial nature, but that still contributes to the acquisition, conservation or improvement of an asset.


  • Caring for children to enable the other party to attend work to earn an income.
  • Caring for children so that the other party can do renovations or repairs and maintenance to the home.
  • Doing the housework to support the other party to attend work and earn an income.

Contributions to the Welfare of the Family

Contributions to the welfare of the family are not required to be towards the “acquisition, conservation or improvement” of the property pool, as are the previous categories of contributions. Contributions to the welfare of the family are considered valuable on their own merits and are given weight accordingly.

Therefore, the work that one (1) party does as homemaker and parent may have the effect of offsetting significant direct financial contributions of the other party. Therefore, a breadwinner on a high income and a stay-at-home parent of three (3) children may be considered to have made equal contributions to the property pool despite the differences in their roles.

Timing of Contributions

Contributions to the property pool are relevant during three (3) specific periods:

1 | At the commencement of the relationship

Contributions at the commencement of the relationship are likely to be direct financial contributions that are readily quantifiable. The contributions of each party at the start of the relationship (at the commencement of cohabitation) are weighed against each other, so if both parties have brought assets of a similar value to the relationship, they are assessed as having made equal contributions at this stage.

Where one (1) party brings a greater share of assets, this party is likely to be entitled to a greater share of the assets on a contributions-basis, unless these initial contributions are entirely offset by the contributions of the other party throughout the relationship and before the Property Division.

Generally, in a short relationship, where one (1) party has made greater initial contributions, there has been less time for the other party to make enough contributions throughout the relationship to offset the initial contribution. Therefore, the contributions are likely to be weighed in favour of the party with the greater initial contributions.

Generally, in a long relationship (ten years+), as there has been more time during the relationship for the party who has not brought assets to the relationship to make other types of contributions (particularly as homemaker and parent), the party with the greater initial contributions is likely to have less weight given to their initial contributions.

2 | During the relationship

Throughout a relationship there is usually a myriad of contributions made by each party to the property pool and welfare of the family as part of the fabric of family life. These might involve accumulating property, paying the costs of living, keeping a home and raising children. The longer the relationship, the more likely that each party will be assessed to have made more-or-less equal contributions.

3 | After separation

As living arrangements change at the time of separation, so do the types of contributions made by each party. One (1) party may make all home loan repayments and have the primary care of the children, but they are no longer supported by the other party as they were during the relationship. Therefore, where one (1) party takes on the majority of contributions after separation, this can shift the assessment of contributions in their favour. Where the period between separation and Property Division is short, this discrepancy does not have a large, if any, impact. Where the period between separation and Property Division is long (several years or more), an imbalance in post-separation contributions can have a significant impact on the ultimate contributions-based division of assets.

Legal Principles that have Developed in Relation to Contributions

Over many years of the Courts considering, weighing and assessing the contributions of parties to a former relationship, several principles have developed in relation to particular circumstances:

  • The longer the relationship, the more likely that the contributions of the parties will be assessed as equal, unless there has been a considerable lump sum contributions (such as an inheritance) made by one (1) party.
  • The shorter the relationship, the more likely that the contributions of the parties will be assessed in the same proportions as at the commencement of the relationship.
  • There is no extra loading for contributions for special skills, such as the contribution of significant funds during the relationship by virtue of one (1) party being a highly successful property developer, surgeon, etc. Extra weight is not given to a party’s contributions simply because their salary is higher than the other party.
  • There is no extra loading for “Super Mum” contributions, where a parent (usually the female partner) works full time and completes most of the parenting and household duties on daily basis over many years, while the other parent works full time but does not bear the same load of parenting and household duties.
  • Contributions are not approached as a mathematical calculation. Instead, the myriad of contributions of each party are weighed, with real weight given to the role of homemaker and parent. So where one (1) party is the breadwinner and the other the homemaker, the contributions made in their daily lives are considered equivalent (despite the fact that the breadwinner may earn more than it would cost to pay for the household work).
  • There is rarely a deduction for “negative contributions”. Losses incurred in the course of the relationship are to be shared between the parties (although not necessarily equally) unless there has been a course of conduct designed to minimise the value of assets or when one (1) of the parties has acted recklessly or negligently with the assets so as to minimise their value (eg. intentionally running down the value of a business or financial losses incurred as a result of gambling).
  • Windfalls made in the course of a relationship are shared in the proportions of all the other contributions made by the parties during the relationship. The windfall is not necessary the contribution of the party who took the action that resulted in the windfall (eg. buying a lottery ticket).
Step 3: Which person has the greater future need?

The next step is to consider the circumstances of each of the parties to ascertain whether they have greater responsibilities, disabilities or disadvantages than the other party that mean that they should get the division of property adjusted in their favour.

The factors that the Court will take into consideration in determining whether there should be an adjustment of the contributions-based division of the property pool include:

  • The age and state of health of each of the parties.
  • The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for gainful employment.
  • Whether either party has the care or control of a child under 18 years.
  • Commitments of the parties that are necessary for them to maintain himself or herself, or a child or another person the party has a duty to maintain (eg. financial support of an elderly parent).
  • The responsibilities of either party to support another person.
  • The eligibility of either party to a Centrelink or superannuation pension and the rate of the pension.
    A standard of living that in all the circumstances is reasonable.
  • The need to protect a party who wishes to continue that party’s role as a parent.
  • If either party is cohabiting with another person – the financial circumstances relating to the cohabitation.
    The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party.
  • The duration of the marriage or de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration.
  • The Child Support payments that a party has provided, is to provide, or might be liable to provide in the future for a child of the marriage or de facto relationship.
  • Any fact or circumstances which, in the opinion of the Court, the justice of the case requires to be taken into consideration.

The circumstances must be considered for each party and then weighed against each other so that, where one (1) party has future needs that outweigh the other party’s, there is likely to be an adjustment of the contributions-based Property Division in their favour.

In practice, assessing future needs can be quite straightforward where both parties are of a similar age and state of health and one (1) party has the care of young children and cannot earn an income. It is quite clear in such a case that the future needs of the party with the care of the children outweigh that of the other party and that there should therefore be an adjustment of the assets in their favour.

However, in cases where each party has considerable future needs, it may be difficult to determine which person, if any, has the greater future needs. Each person may have poor health and be unable to earn an income but, where neither party has future needs factors that outweigh the other person’s, there will not be an adjustment.

Step 4: Determine whether the proposed division of property is just and equitable

At this final step, it must be just and equitable to make an Order to alter the property interests of the parties and, if so, that the Order itself be just and equitable.

Just and equitable means that the outcome is not only right, but that it is fair between the parties.

This step is to ensure that the Court does not alter the property rights of parties unless justice requires it to do so. If the Court decides it is just and equitable to make any Order, the Court must be satisfied that the alteration of property goes no further than is needed to do justice. The primary concern of the Court at this step is the existing and future needs of the parties.

This step recognises that the calculation of percentages or an equal distribution is not necessarily the fairest outcome if it results in one (1) person receiving property such as real estate and savings, and the other receiving only superannuation, where the superannuation cannot be accessed for several years. In this situation, a just and equitable outcome may still involve an equal division of property but where the parties each end up with real estate, savings and superannuation.

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Frequently Asked Questions

Are assets always split 50/50 in a Divorce?

No, a divorce does not mean that assets are split 50-50, in fact often this is not the case.

The Family Law Act 1975 requires the parties take into account a variety of considerations, including:

  • Each of the parties financial and non-financial contributions to the relationship,
  • The length of the relationship,
  • The future needs of the parties,
  • The construction of the matrimonial asset pool,
  • What is ‘just and equitable’.

This means that you will often need the assistance of a skilled Family Lawyer to assess what you and your partner are entitled to.

What is a wife entitled to in a Divorce Settlement?

There are many factors which must be considered when dividing up matrimonial assets.

All assets in the name of either party bought to a marriage in Australia are included in the matrimonial asset pool.

This means that even if the house is not in your name you are still entitled to a property settlement.

There are many factors which need to be considered when dividing up the asset pool including the financial and non-financial (such as child rearing or homemaking) contributions of each of the parties.

Generally, you will need an experienced Family Lawyer to provide advice as to what your likely entitlements are.

How long does Divorce Property Settlement take?

In our experience most divorce settlements take around six months to a year.

If you attend Court they can take up to two (2) or even three (3) years from the time the Court proceedings commenced.

Does a Property Settlement have to go to Court?

No, many separated couples reach an agreement about dividing their assets by themselves, or with the help of Family Lawyers without going to Court.

If you and your former partner are able to reach agreement an experienced Family Lawyer can formalise this for you.

If you are unable to reach agreement new Court rules require parties to attend mediation. Mediation is a cost-effective process where parties can discuss and negotiate a property settlement with the assistance of a qualified mediator and their legal representatives.

If you are unable to reach agreement through mediation you can then commence Court proceedings.

How will our property be divided?

Depending on the nature of your assets and liabilities, there are often many options available for how you achieve a division of property with your ex.

Often parties enter into negotiations with a goal in mind regarding what they do or do not want to keep. Once you have received legal advice about your likely range of entitlements, you should obtain advice from your Financial Planner and/or Mortgage Broker to see if your idea for the perfect settlement is realistic.

For example, depending on the size of your asset pool, if you really want to retain your house, you will need to work out how much you can borrow. You should keep in mind that you may need to refinance the entire balance of your Mortgage (if you have one) and potentially pay a lump sum of money to your ex-partner as part of a Property Settlement. It is important to work this out prior to coming to an agreement.

You should also be aware of any taxation issues which may flow from a proposed Division. For example, if you plan to sell an investment property to facilitate a settlement, you need to seek advice from your accountant in relation to any potential Capital Gains Tax liabilities.

Is a Property Division always necessary?

A Property Division will almost always be necessary where property (e.g. the family home) is owned in the joint names of the parties.

It is always necessary to formalise a Property Division after separation (even where ownership of assets does not change) to avoid one party making a later claim even several years after separation. This can be done by way of Consent Orders or a Binding Financial Agreement under the Family Law Act 1975.

Our Family Lawyers will advise you about which option is best for you and if you are happy to go ahead, draft a Binding Financial Agreement or Consent Orders, which are binding and enforceable.

How is the Business valued?

Because the family business forms a part of the property pool, it is important that you know its value.

Simple business structures such as those operating as a sole trader can be relatively simple to value, however as business structures increase in size and complexity the nature of the business valuation becomes more complex.

If you or your spouse intend to retain the family business, we will link you with expert business valuers who will conduct a formal valuation of the business.


How can I get the Court’s permission to make a Property Division claim out of time?

When it can be established that:

  1. There would be hardship to you or your child if the Court’s permission is not granted, and
  2. There is an adequate explanation for the delay.

Hardship may be established by showing the Court that, if you are not given permission to make a claim, you will lose a significant sum of money. However, hardship is not established where the legal costs of pursuing the claim outweigh the likely outcome.

An adequate explanation for the delay may be that:

  • You did not have the benefit of legal advice and were not aware of the limitation period,
  • Your ex-partner continued to maintain you so you had no reason to pursue a Property Division claim until this financial support was withdrawn, or
  • You were suffering a period of illness until after the expiration of the limitation period that prevented you from making a claim.

You must establish both hardship and an explanation for the delay to get the Court’s permission to make a claim out of time. This can be difficult to achieve and, if you are unsuccessful, there is a risk that you will be Ordered to pay a proportion of your ex-partner’s legal fees.

What happens if I receive an inheritance after separation but before my Property Division is finalised?

Even where an inheritance, or another large lump sum, is received after separation it is still included in the property pool available for division between you and your ex-partner. However, given that the inheritance was received after separation, your ex-partner is generally not going to have made post separation contributions of similar significance and, therefore, you are likely to be entitled to the majority, if not all, of the inheritance.

The inheritance is at risk, however, where the property pool is very small and there are minimal other assets to divide between the parties. In this case, part of your inheritance is much more likely to be divided in favour of your ex-partner than if there were other assets to provide for them.

What are the implications of not documenting an informal Property Settlement?

A property settlement is legally binding only if it occurs pursuant to a Binding Financial Agreement or Consent Orders.

If you decide to informally document your property settlement you should be aware that your former partner can change their mind and apply to the Court for a property settlement that is different to the one agreed to. If your partner’s financial circumstances change, for example, they are diagnosed with an illness or they are no longer able to work, they may be entitled to more of the assets even though the circumstances did not exist at the date of separation.

What is the time limit for making a Property Settlement?

Married couples that separate can formalise a Property Settlement at any time after separation. There is no requirements that the parties need to be Divorced at the time of the Property Settlement. However, once parties are Divorced there is a 12 month limitation period that applies. This means if you are not able to reach an agreement with your separated spouse, you need to file an Initiating Application with the Court before the 12 month limitation period expires.

For de facto relationships there is a time limit of 24 months after the date of separation.

Some exceptions apply to these limitations, however, you should assume that the limitation period will not be extended. It is, therefore, important to speak to a Solicitor about negotiating a property settlement or filing Court proceedings before the time limitation period runs out.

What is a Binding Financial Agreement?

A Binding Financial Agreement is an agreement entered into before, during or after a relationship. If a Binding Financial Agreement exists the Court will not have the power to make an Order affecting the matters covered by the Agreement. As a result, a Binding Financial Agreement will only be binding if it includes proper financial disclosure of the parties’ circumstances and attaches Certificates from independent Solicitors certifying that the parties have been advised of the advantages and disadvantages of entering into the agreement.

In some circumstances a Binding Financial Agreement can be set aside by a Court. As such, Consent Orders are preferable where available.

What if I think my ex is hiding assets?

Under the family law rules, each party to a Family Law Property Settlement has an obligation to provide full, frank and financial disclosure of their financial interests. This obligation of disclosure extends to any business interests the parties might have. You will need to provide your ex-partner with business documents such as any trust deed, shareholders agreement, BAS statements and financial statements.

Where your ex refuses to provide disclosure, it may be necessary to start Court proceedings to obtain the relevant documents under subpoena.

What should I do if I’m concerned that my ex-partner might sell or transfer assets?

If you have any reason to fear that your ex-partner may:

  • Remove matrimonial property from Australia, and/or
  • Sell, transfer or otherwise deal with matrimonial property, without your consent and before your Family Law matter has been resolved. A Court Order (called an Injunction) should be sought on your behalf to prevent such dealings with the matrimonial property. Please provide us with your immediate instructions should you have any such concerns regarding the matrimonial property.

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Consent Orders for Property Division

Informal agreements for the division of property are simply unenforceable and may result in avoidable stamp duty or CGT liabilities unless formalised by Consent Orders or an approved Binding Financial Agreement.

$3,500 incl. GST

Example Scenario

Stephen and Sue separate after a 12-year marriage. At the date of cohabitation, neither party had any significant assets or debts. The parties made similar contributions throughout the relationship except for a $500,000 inheritance received by Stephen three (3) years into the marriage which he used to pay towards the home loan. The parties have two (2) children together, with Sue having taken a year of maternity leave for each child then returning to part time work until the youngest child started school.

At separation, the property pool consists of a house with equity of $1,000,000, Stephen has superannuation of $200,000 and Sue has superannuation of $50,000.

The parties are both in good health and of a similar age, however, Stephen earns $150,000 per annum while Sue earns $95,000. Sue has the primary care of the two (2) children who are nine (9) and seven (7) years old.

How will the property be divided?

In this case, Stephen is likely to be entitled to more of the non-superannuation property pool on the basis of his contribution of the $500,000 inheritance he paid to the home loan. However, nine (9) years have passed since this contribution and Sue has made significant contributions to the welfare of the family, particularly in respect of the two (2) children, plus financial contributions from her earnings. This has had the effect of reducing the impact of Stephen’ss contribution of the inheritance on the contributions-based outcome. On the basis of contributions, the net non- superannuation asset pool is divided $600,000 (60%) in favour of Stephen and $400,000 (40%) in favour of Sue.

In light of her primary care of the children and the disparity between hers and Stephen’s earning capacities, a 5% future needs adjustment is made in favour of Sue in respect of the non-superannuation assets. This results in a 45% division of non-superannuation assets to Stephen and 55% to the Sue. Therefore, Stephen receives $450,000 of the equity in the property and Sue receives $550,000.

The total pool of superannuation in the sum of $250,000 is divided equally between the parties so that the each receive $125,000. To achieve this, $75,000 of Stephen’s superannuation is transferred to Sue’s superannuation.

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Delaney Roberts went above and beyond. Jade is highly efficient and worked to get results as quickly as possible while leaving no stone unturned.

“Navigating family law can feel overwhelming, emotional and confusing
however having a lawyer you can trust that shows compassion, extensive knowledge and clear judgement goes a long way to make the process as stress free as possible and Jade and Jill from Delaney Roberts went above and beyond. Jade is highly efficient and worked to get results as quickly as possible while leaving no stone unturned and both Jade and Jill were always available to answer any questions along the way & keep me in the loop. I hope to never find myself in this situation again but if I did, I would want Jade on my side again. Huge thank you again for all your hard work & giving me the best possible outcome!”

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Clare was very professional, her advise was spot on, she keep me on track when I was losing it.

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