Are Assets Always Split 50/50 After Separation?

Property settlement is distinct from spousal or de facto maintenance: maintenance concerns financial support and has its own eligibility requirements, rather than being an automatic consequence of an unequal property division.

Is There a Presumption of a 50/50 Split?

No.

Australian family law applies no formula and no starting presumption that separating spouses or de facto partners are entitled to an equal share of the property. The High Court in Stanford v Stanford [2012] HCA 52 confirmed that the just-and-equitable requirement is a substantive one, and that it does not import any assumption that the parties are entitled to a particular share — including an equal share — of the property.

That said, equal division can be entirely appropriate on particular facts. In a long relationship where both parties contributed substantially in different ways and neither has a materially weaker position going forward, an equal outcome may well be the just and equitable result. The point is that equality is a conclusion that has to be reached on the evidence, not an entitlement that is assumed at the outset. For the same reason, indicative percentages quoted by friends or found online are of little value: outcomes cannot be predicted reliably without the underlying financial evidence.

This matters just as much where no court ever decides the matter. The great majority of property settlements are negotiated, but lawyers and mediators negotiate by reference to the same statutory framework and to the range of outcomes a court could reasonably reach. The legislation is the reference point whether or not a judge is involved.

The Current Statutory Approach

The Family Law Amendment Act 2024 (Cth) reshaped the property provisions of the Family Law Act 1975 (Cth). The amended framework generally applies to new proceedings and to proceedings already on foot from 10 June 2025, except where the final hearing had already commenced before that date.

The legislation does not prescribe an automatic percentage or require every case to be decided through a rigid mathematical formula. It does, however, expressly identify the matters the court must address: existing property rights and liabilities, contributions, current and future circumstances, and whether the resulting order is just and equitable. Under s 79(3) for married couples, and the corresponding provisions of s 90SM for de facto partners, the court:

• identifies the existing legal and equitable rights and interests in the property of the parties or either of them;
• identifies existing liabilities;
• takes into account the statutory contribution considerations;
• takes into account each party's current and future circumstances; and
• makes no order altering property interests unless satisfied that it is just and equitable to do so.

These are matters the court must address, not a mandatory sequence of arithmetical steps. The exercise remains evaluative and discretionary, and the just-and-equitable requirement operates as a genuine check on the result rather than a rubber stamp.

What Property, Liabilities and Resources Are Considered?

It helps to keep three categories distinct, because they are treated differently.

Property and legal or equitable interests. Real estate, bank accounts, shares and investments, vehicles, personal property, superannuation interests, and equitable interests such as those arising under a resulting or constructive trust.

Liabilities. Mortgages, personal and business loans, credit cards, tax debts and guarantees. A liability is not itself an asset, and a claimed debt is not automatically deducted. The nature of the liability and the circumstances in which it was incurred may matter, and a debt has to be proved like anything else.

Financial resources. Benefits or sources of financial support that a party does not presently own as property but has a sufficiently reliable expectation of receiving, depending on the legal arrangements and evidence — certain trust entitlements or expected distributions, for example. Ordinary voluntary assistance from a new partner is not necessarily a financial resource; the financial circumstances of cohabitation with another person are a separate consideration. Financial resources are generally weighed as part of a party's circumstances rather than divided.

Several traps recur:

• A company's assets are the company's, not automatically a shareholder's personal property.
• Trust property is not automatically the property of a beneficiary; discretionary interests in particular may be a resource rather than property.
• How company and trust interests are treated depends on the legal rights involved, questions of control, the governing documents and the evidence.
• Superannuation is property for family law purposes, but it is governed by a specialist splitting regime.
• Contingent liabilities, latent tax and costs of sale are not invariably deducted; they require evidence about how likely and how immediate they are.

When Are Assets Valued?

A widespread assumption is that the balance sheet freezes on the date of separation. It does not. The court identifies existing rights, interests and liabilities at the time it considers the matter, so the relevant figures are ordinarily current values rather than historic ones.

The position can change considerably between separation and resolution. Property may be bought or sold, businesses may grow or fail, debts may be paid down or run up, and one party may continue to service a mortgage or care for children. Post-separation acquisitions, disposals, contributions, debts and any wastage may all remain relevant, and are dealt with through the contribution and circumstances considerations rather than by ignoring them.

Because current figures matter, up-to-date expert valuations are often needed for real estate, businesses, trust interests and some superannuation interests — particularly where a matter has taken time to resolve.

Contributions

The contribution considerations in s 79(4), and the corresponding de facto provisions, are deliberately broad. They include:

• initial contributions — what each party brought in;
• financial contributions, including income and capital;
• non-financial contributions, such as renovation, maintenance or unpaid work in a family business;
• financial and non-financial contributions made directly or indirectly by or on behalf of a party, or a child of the relationship, in relation to property;
• a party's contribution to the welfare of the family, including as homemaker or parent;
• contributions made during the relationship and after separation;
• contributions to property that has since been sold or otherwise disposed of;
• the effect of any proposed order on the earning capacity of either party to the marriage — s 79(4)(d);
• any other order made under the Act affecting a party to the marriage or a child of the marriage — s 79(4)(f); and
• child support under the Child Support (Assessment) Act 1989 that a party has provided — s 79(4)(g).

The assessment is evaluative, not a dollar-for-dollar ledger. The law has long recognised that raising children and running a household can be as significant as earning income, and no exchange rate converts one into the other. What matters is the overall picture the evidence discloses across the whole relationship.

Family Violence and Property Settlement

The Act now deals expressly with family violence in property matters, through two separate pathways that are easy to conflate. Family violence is not limited to physical abuse — the Act's definition expressly includes economic and financial abuse, such as dowry abuse.

Effect on contributions — s 79(4)(ca). The court may consider the effect of any family violence to which one party has subjected or exposed the other on that other party's ability to make financial, non-financial, homemaker or parenting contributions. Where violence made contributing significantly more difficult, the contributions actually made may be assessed in that light.

Effect on current and future circumstances — s 79(5)(a). Separately, the court may consider the effect of any family violence to which one party has subjected or exposed the other on that other party's current and future circumstances — for example on health, earning capacity or housing.

Corresponding provisions apply to de facto matters. Neither pathway produces an automatic or fixed percentage adjustment, and neither requires a criminal conviction or a family violence order as a precondition. The relevant effect must be established on the evidence, which is a matter to approach carefully and with proper legal support. If safety is a present concern, our guide to family violence intervention orders in Victoria explains the protective options.

Current and Future Circumstances

This is the forward-looking part of the assessment. The statutory list is long; grouped usefully, it covers:

• The parties themselves — age, health, physical and mental capacity for appropriate gainful employment, income, property and financial resources, and the effect of any family violence.
• Children and dependants — care of a child under 18 and the housing appropriate to that care, and necessary commitments to support another person.
• Financial obligations and conduct — liabilities and the circumstances in which they arose, any intentional or reckless material wastage of property or financial resources, the interests of creditors, and child support a party is to provide or might be liable to provide in the future — s 79(5)(s).
• Capacity to re-establish — a reasonable standard of living, the extent to which an alteration of property interests would enable a party to undertake education, establish a business or otherwise obtain an adequate income, and any pension or benefit received.
• The relationship and its effects — its duration and the extent to which it affected earning capacity, the parenting role assumed, the financial circumstances of any cohabitation with another person, the terms of any binding financial agreement, and any other fact or circumstance that justice requires be taken into account.

These matters may justify an adjustment in favour of one party. How large an adjustment, if any, depends entirely on the evidence.

Wastage and Liabilities

Two express provisions introduced in 2025 deserve their own mention. The court may take into account the effect of intentional or reckless conduct by a party that has materially wasted property or financial resources, and it may take into account liabilities including the nature of a liability and the circumstances in which it was incurred.

This does not revive an automatic "add-back" rule, and it is not an invitation to relitigate every questionable purchase. Money spent on ordinary living, or on legal costs, is not wastage simply because the other party disagrees with it. Where genuine wastage is alleged — gambling losses, dissipation of an asset, or debt run up recklessly — it must be proved, and it is then addressed through the statutory framework rather than by adding a notional figure back to the pool. The same applies in reverse to debts: a liability is taken into account with regard to how it arose, not automatically deducted.

Inheritances, Gifts and Initial Assets

Inheritances, gifts and property owned before the relationship are neither automatically excluded nor automatically shared. Treatment depends on when the asset was received, its size relative to everything else, the length of the relationship, how it was used, whether it was intermingled with joint finances, the contributions each party made afterwards, and the parties' current and future circumstances.

A large inheritance received a few months before a short relationship ended will usually be viewed very differently from one received twenty years ago and long since spent on the family home. There is no percentage formula, and attempts to apply one tend to produce misleading expectations.

Businesses, Companies and Trusts

Where a business, company or trust is involved, both the legal characterisation and the valuation can be complex. The first question is what the party actually holds — shares, a unit trust interest, a beneficial interest under a discretionary trust, a directorship, a loan account, or effective control of an entity. Each has different consequences, and not every trust asset forms part of the property available for division.

The second question is value, which frequently requires forensic accounting or expert valuation evidence, particularly where earnings depend heavily on one party's personal exertion. Our guides to business interests in a property settlement and how businesses are valued in family law proceedings go into more detail.

Superannuation

Superannuation is property for Family Law Act purposes. It can be valued and, where appropriate, split by agreement or court order. But it is not necessarily divided equally, and it is not automatically treated as interchangeable with cash or property dollar-for-dollar — it is generally preserved until a condition of release is met, and defined benefit interests are valued under a specific method.

For how superannuation is specifically valued and split, see our guide to superannuation splitting in divorce and property settlements.

Companion Animals

From 10 June 2025 the Act deals expressly with companion animals — broadly, animals kept primarily for companionship, rather than animals kept for business, agricultural, laboratory or assistance purposes.

The court may order that one party has ownership of the animal, that it be transferred to a consenting third party, or that it be sold. There is no power to make a shared-ownership order under these provisions. Relevant considerations include how the animal was acquired, who has owned and had possession of it, who has cared for it and met the expense of doing so, any family violence, any cruelty or abuse towards the animal, the attachment of a party or a child to it, and each party's ability to care for it in the future. This is a property provision: companion animals are not treated as children, and there is no best-interests test equivalent to parenting law.

Financial Disclosure

Sections 71B and 90RI place the duty of full and frank disclosure in the Act itself. From the start of proceedings until they are finalised, each party must disclose relevant information and documents about their financial circumstances in a timely manner. The statutory duty also applies while separated parties are preparing for a proceeding (sections 71B(5)-(6) and 90RI(5)-(6)), and the pre-action procedures in the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Family Law Rules) add detailed pre-filing obligations, subject to exemptions.

Three features are often underestimated. The duty is continuing — new information must be disclosed as circumstances change. It extends beyond assets held solely in a party's own name, reaching interests held through companies, trusts, partnerships and other structures. And non-disclosure can have real consequences: procedural orders, adverse costs orders, inferences drawn against the non-disclosing party, and in some cases orders being set aside. Not every breach produces that last outcome, but proceeding on incomplete information is a poor foundation for any settlement.

A Worked Illustration

This example is illustrative only. It is not a calculator, and it is not a prediction of what a court would do on similar facts.

Assume a couple separates after an eighteen-year marriage with a net position of roughly $1.2 million after liabilities, expressly including both superannuation interests as well as the home and savings. The superannuation component is not immediately available cash. One party worked full time throughout; the other worked part time while carrying the majority of the care of three children, two of whom are still at school and live primarily with that party. Contributions across the relationship might be assessed as broadly comparable, given the combination of income on one side and homemaker and parenting contributions on the other. But the parties' current and future circumstances differ materially: one has a materially higher earning capacity, while the other has continuing care responsibilities and appropriate housing needs for the school-aged children, and a reduced capacity to rebuild financially.

Comparable contributions would not end the analysis. The different earning capacities, continuing care and housing needs could justify a current-and-future-circumstances adjustment in favour of the primary carer, provided the overall orders are just and equitable. No particular percentage is assumed, and the allocation between accessible assets and preserved superannuation matters as well as the total value. Change any significant fact — the length of the relationship, the source of the assets, the ages of the children, the health or earning capacity of either party — and the appropriate outcome changes with it.

Resolving Matters Without a Final Hearing

Many family law property matters are resolved without a judicial determination. It is worth distinguishing between five different processes:

• Negotiation without proceedings — direct or lawyer-assisted negotiation before anyone files.
• Mediation or family dispute resolution — a structured negotiation facilitated by an independent practitioner, who assists the parties to reach their own agreement but does not decide anything.
• Arbitration — a private, consensual process in which an arbitrator hears the dispute and makes an award, which can be registered with the court and is then enforceable, subject to limited review rights.
• Proceedings that settle — matters filed in court that resolve before a final hearing.
• Final judicial determination — a judge decides.

These processes differ fundamentally: negotiation, mediation and family dispute resolution produce outcomes only by agreement; arbitration produces an award, while a court's final judgment determines a dispute that proceeds to adjudication. Court proceedings may instead settle by agreement before a final judgment. The court also expects parties to make a genuine attempt to resolve matters before filing, through the pre-action procedures in the Family Law Rules 2021, unless an exception applies — urgency or family violence, for example.

Since 10 June 2025, the less-adversarial principles in Part XI, Division 4 can also apply to property proceedings if the parties consent or the court orders it (s 102ND(3)). This concerns how the court manages the evidence and issues; it does not replace the statutory property test or require the parties to settle.

Reaching agreement is not the same as making it binding. An informal agreement, or simply transferring an asset, may not finally determine anyone's legal rights. Two formal mechanisms exist:

• Consent orders, which require the court's approval and which the court can only make if satisfied the orders are just and equitable.
• Binding financial agreements, which must satisfy strict statutory requirements including independent legal advice for each party.

Neither offers absolute finality: each can be challenged or set aside in defined circumstances, such as non-disclosure, fraud or a failure to meet statutory requirements. Before signing anything, consider how the agreement will actually be implemented — refinancing, transfer timing, duty, capital gains tax and superannuation splitting all have practical consequences.

De Facto Relationships

Former de facto partners can seek property orders under Part VIIIAB, and the same substantive principles about contributions and current and future circumstances apply. But a de facto couple must first establish that the court has jurisdiction, and that is not automatic.

Broadly, a de facto financial cause can be brought where the parties lived together on a genuine domestic basis and one of the following gateways is met:

• the relationship lasted at least two years in total;
• there is a child of the relationship;
• the relationship was registered under a State or Territory relationships register; or
• one party made substantial contributions and a failure to make an order would result in serious injustice.

Geographic and jurisdictional requirements also apply, including connections with a participating jurisdiction, and an application must generally be made within two years of the relationship ending. Western Australia has its own statutory and court framework for de facto property matters, so specific Western Australian advice may be required. Our guide to de facto property claims covers the gateways in more detail.

Time Limits

Limitation periods are strict and are a common source of avoidable difficulty.

• Married couples: an application under s 79 must generally be filed within 12 months of a divorce order taking effect.
• Former de facto partners: an application under s 90SM must generally be filed within 2 years of the end of the relationship.

Divorce is not a precondition to negotiating or formalising a property settlement — many couples resolve property well before applying for a divorce. Consent orders or a valid binding financial agreement can finalise the property issues they cover before divorce; they do not stop time itself or suspend s 44's limitation period for any remaining claim. Informal agreement or ongoing negotiations do not achieve that finality or stop the subsequent 12-month limitation clock once a divorce takes effect. If you are considering a divorce application, see our step-by-step guide to how to apply for divorce in Australia.

Where the ordinary period has passed, both parties can consent to the application — s 44(3) for married parties and s 44(5)(b) for de facto parties — without a leave application. Under ss 44(3AA) and 44(5A), the court may dismiss consent-based proceedings if consent was obtained by fraud, duress or unconscionable conduct and allowing them to continue would amount to a miscarriage of justice.

Without consent, leave for a property claim requires hardship to a party to the marriage or a child (s 44(4)(a)), or to the de facto applicant or a child (s 44(6)(a)). These are threshold requirements, not guarantees: leave remains discretionary. For maintenance proceedings only, an alternative ground is that, at the end of the applicable filing period, the applicant would have been unable to support themselves without an income-tested pension, allowance or benefit (ss 44(4)(b), 44(6)(b)).

Special timing provisions can apply when an approved maintenance agreement is revoked (s 44(3A)), or a financial agreement is set aside or found invalid (s 44(3B) for married parties; s 44(5)(a)(ii) for de facto parties). These are not the ordinary consent pathway. In particular, the de facto standard application period can be 12 months after the financial agreement is set aside or found invalid. Obtain advice on the applicable provision rather than assuming every case has the same deadline. Continuing negotiations do not necessarily protect your position: a deadline can expire while correspondence goes back and forth. Our guide to time limits for property settlements sets out the detail.

Practical Steps

• The family home. Decide early whether it will be sold, transferred or retained, and test whether retention is affordable.
• Mortgages and lenders. An order between the parties does not automatically release either borrower from a loan. Refinancing capacity and lender consent need to be confirmed. The Act permits certain third-party orders under Part VIIIAA (including s 90AE, applied to de facto matters by s 90TA), subject to statutory safeguards and procedural fairness; a lender's rights cannot simply be ignored.
• Valuations. Obtain current, properly qualified valuations for significant assets rather than relying on online estimates.
• Businesses and trusts. Gather financial statements, trust deeds, constitutions and tax returns early; forensic evidence takes time.
• Tax and duty. Transfers between separating parties can attract capital gains tax and duty consequences. Relief and rollover may be available in some circumstances but are not automatic in every transaction — obtain specific accounting and legal advice.
• Third parties and creditors. Creditors, co-owners and other third parties may have interests that affect what is possible.
• Protecting assets. If you are concerned that assets are being dissipated or moved, obtain urgent advice — the court can make interim injunctions restraining a party from dealing with property, and other protective orders, but they work best early.

Victorian transfer duty. Section 44 of the Duties Act 2000 (Vic) can exempt a transfer made solely because of marriage or domestic-relationship breakdown. The transferor, transferee and beneficial-interest requirements must all be met, and no other person may take or be entitled to an interest in the property. This is not a general exemption for any transfer between former partners; check the SRO's evidence requirements before transferring.

Commonwealth capital gains tax. Subdivision 126-A of the Income Tax Assessment Act 1997 (Cth) provides relationship-breakdown rollover for qualifying events, including transfers because of a court order, qualifying binding financial agreement, arbitral award or court-approved maintenance agreement under s 87 of the Family Law Act (s 126-5(1)(b)). Certain creation-type CGT events can also qualify (s 126-5(2)); eligibility depends on the event and instrument, with separation and relationship-breakdown conditions for relevant agreements (s 126-25). A private informal agreement is insufficient. Where applicable, rollover is mandatory and defers the gain or loss rather than permanently exempting the recipient's later disposal; additional conditions apply to agreements and entity transfers. Obtain tax advice on the instrument, asset and cost base before implementation.

If immediate access to funds is needed, an interim property distribution may be sought before final orders. It is not automatic: the court must consider the statutory requirements and its effect on the eventual settlement.

If you require advice regarding separation, divorce, de facto relationships or property settlements, contact Parke Lawyers for assistance.

Frequently Asked Questions

Sources and Further Reading

• Family Law Amendment Act 2024 (Cth) — Schedule 1, item 68 (property transition) and Part 2 (less-adversarial proceedings)
• State Revenue Office Victoria — relationship-breakdown transfer exemption, Duties Act 2000 s 44
• Australian Taxation Office — relationship-breakdown rollover, ITAA 1997 Subdivision 126-A
• Family Law Act 1975 (Cth) — current compilation, including sections 44, 71B, 79, 90RI, 90SB and 90SM
• Federal Circuit and Family Court of Australia (Family Law) Rules 2021 — pre-action procedures and disclosure obligations
• Federal Circuit and Family Court of Australia — Family law (property) changes from 10 June 2025
• Attorney-General's Department — Family law (property) changes from 10 June 2025: fact sheet for separating couples
• Federal Circuit and Family Court of Australia — Financial or property: we cannot agree, including limitation periods
• Federal Circuit and Family Court of Australia — Duty of disclosure
• Federal Circuit and Family Court of Australia — Family law and superannuation
• Stanford v Stanford [2012] HCA 52 — the just-and-equitable requirement is a substantive one