Information Centre · Family Law
How Do Current and Future Circumstances Affect a Property Settlement?
How the current and future circumstances of each party are considered in an Australian family-law property settlement under s 79 or s 90SM as in force from 10 June 2025.
Key points
- Under s 79 (married) and s 90SM (de facto) of the Family Law Act 1975 (Cth) as in force from 10 June 2025, the Court considers each party's current and future circumstances — a forward-looking, comparative exercise for which the familiar shorthand 'future needs' is sometimes used; the assessment is discretionary and evidence-based.
- There is no fixed percentage — no automatic per-child, income-gap, disability or housing formula; reported outcomes from other cases illustrate principles rather than supplying arithmetic.
- Matters that may be relevant include age, health, income and earning capacity, care and housing of children, financial resources (including trusts and company interests), pensions and benefits, duration of the relationship, cohabitation, child support obligations and receipts, liabilities, and material wastage where relevant.
- Current income and earning capacity are not the same — earning capacity may draw on qualifications, work history, age, health, childcare, geographic constraints and reasonable employment realistically available; speculative imputation of income unsupported by evidence is generally inappropriate.
- A new partner's assets and income do not automatically become the property of the former couple or available for division; trust assets are not automatically personal property; a mere expectation of a future inheritance from a living person is generally not property.
- The economic effect of any family violence is considered where the law and evidence support it, with focus on measurable effect; care is required to avoid double counting between the contribution stage and the current-and-future-circumstances stage. Child support and spousal maintenance remain distinct remedies from property settlement.
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An Australian family court considers each party's current and future circumstances as part of its property assessment. This stage is discretionary, comparative and evidence-based. Older articles and cases sometimes use the shorthand 'future needs' to describe similar considerations.
Statutory framework
Under s 79 (married) and s 90SM (de facto) of the Family Law Act 1975 (Cth) as in force from 10 June 2025, the Court identifies the parties' existing legal and equitable rights, interests and liabilities; considers each party's contributions; considers each party's current and future circumstances; and must be satisfied under s 79(2) or s 90SM(3) that any alteration of interests is just and equitable in all the circumstances. There is no automatic percentage.
Relevant factors
Matters that may be relevant include age, health, income and earning capacity, care and housing of children, financial resources (including trusts and company interests), pensions and benefits, duration of the relationship and cohabitation, child support obligations and receipts, liabilities, material wastage where relevant and the economic effect of family violence where the law and evidence support it. Not every matter is relevant in every case.
Income and earning capacity
Current income and earning capacity are related but not identical. Earning capacity may draw on qualifications, work history, age, health, childcare responsibilities, geographic constraints and reasonable employment realistically available. Speculative imputation of income unsupported by evidence is generally inappropriate.
Care and housing of children
Care arrangements, school location, housing capacity, bedroom needs, disability access and stability may be relevant. Child support and property settlement remain distinct remedies; a property order should not be drafted as an unlawful substitute for child support. See our child support guide.
Financial resources, trusts and inheritances
Trust interests may be relevant as financial resources depending on control, distribution history and the trust deed; beneficiary status alone is rarely sufficient. Mere expectation of a future inheritance from a living person is generally not property. Cohabitation with a new partner is relevant only through its actual financial circumstances.
Economic effect of family violence
Sections 79 and 90SM as amended require consideration of the economic effect of any family violence, where the law and evidence support it. The focus is on measurable effect rather than punitive compensation.
Interaction with contributions and just-and-equitable
The contribution assessment and the current-and- future-circumstances assessment are conceptually distinct, and any adjustment must sit within a result that is just and equitable in all the circumstances under s 79(2) or s 90SM(3). The same fact may be relevant at more than one stage but must not be counted twice. See our contributions guide.
Frequently Asked Questions
What does 'current and future circumstances' mean in a property settlement?
Under s 79(5) (married) and s 90SM(6) (de facto) of the Family Law Act 1975 (Cth) as in force from 10 June 2025, the Court considers the parties' current and future circumstances as part of its assessment. This is a forward-looking, comparative exercise. The familiar shorthand 'future needs' is often used to describe similar considerations, but the current statutory language is 'current and future circumstances'.
Is any adjustment automatic?
No. Any adjustment for current and future circumstances is discretionary and evidence-based. There is no fixed percentage, no automatic per-child figure and no automatic income-gap adjustment. Reported cases illustrate principles rather than supplying arithmetic.
What matters can the Court consider?
Matters that may be relevant include age, health, income and earning capacity, care and housing of children, financial resources (including interests in trusts and companies), pensions and benefits, duration of the relationship, cohabitation, child support obligations and receipts, liabilities, material wastage where relevant, and — where the law and evidence support it — the economic effect of family violence. Not every matter will be relevant in every case.
How is earning capacity distinguished from current income?
Current income (salary, taxable income, business income or cashflow) is not the same as earning capacity. Earning capacity can draw on qualifications, work history, age, health, childcare responsibilities, geographic constraints and reasonable employment realistically available. Speculative imputation of income unsupported by evidence is generally inappropriate.
How are children's care and housing considered?
Care arrangements, school location, housing capacity, bedroom needs, disability access and stability may be relevant to housing and adjustment. Parenting labels alone do not determine outcomes; the actual arrangements and their financial and practical effect on each party are what count. Child support and property settlement remain distinct remedies.
Is a new partner's income or property considered?
A new partner's assets and income do not automatically become the property of the former couple or available for division. Cohabitation may be relevant only through its actual financial circumstances, such as shared expenses or housing. It is a fact-specific inquiry and does not lead to any automatic adjustment.
How is the economic effect of family violence considered?
Sections 79 and 90SM as amended require the Court to consider the economic effect of any family violence, where the law and evidence support it. The focus is on measurable economic effect rather than punitive compensation, and care is required to avoid double counting between the contribution stage and the current-and-future-circumstances stage.
How does this stage interact with contributions and the just-and-equitable check?
The contribution assessment and the current-and-future-circumstances assessment are conceptually distinct stages, though the same fact may be relevant at more than one. Any alteration of interests must also satisfy the just-and-equitable requirement under s 79(2) or s 90SM(3). The overall outcome is assessed as a whole.
How does this differ from spousal maintenance and child support?
Spousal maintenance under s 72 (married) and s 90SF (de facto) is a distinct remedy directed at a party's inability to adequately support themselves. Child support is administered by Services Australia under the Child Support (Assessment) Act 1989 (Cth). A property order should not be drafted as an unlawful substitute for either.
How Parke Lawyers Can Help
Parke Lawyers acts for separating spouses and de facto partners on the current and future circumstances step of property settlement — earning capacity, care of children, health, superannuation and third-party issues — through our Family Law team. Engage us early — evidence about circumstances is best assembled when it is contemporaneous.
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Our family law team can advise on how current and future circumstances are likely to be assessed in your case and on the evidence needed.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.