Information Centre · Family Law
Property Settlement After Separation: A Complete Guide
How property is adjusted after separation in Australia under s 79 and s 90SM of the Family Law Act 1975 (Cth) as in force from 10 June 2025.
Key points
- Property settlement under the Family Law Act 1975 (Cth) adjusts assets, liabilities and superannuation between separating married or eligible de facto couples; de facto property adjustment is governed by Part VIIIAB, subject to jurisdictional gateways under section 90SB.
- Under section 79 (married) and section 90SM (de facto) as in force from 10 June 2025, the Court identifies each party's existing legal and equitable rights, interests and liabilities; considers contributions; considers current and future circumstances (including, where the evidence supports it, the economic effect of family violence); and must be satisfied that any alteration of interests is just and equitable in all the circumstances — there is no mandatory step-based test and no fixed formula.
- There is no presumption of equal division; equal, 60/40, 70/30 and other outcomes are possible depending on the parties' rights, interests and liabilities, their contributions and their current and future circumstances.
- Superannuation may be split under Part VIIIB by order or by Binding Financial Agreement, subject to procedural fairness to the trustee and correct drafting; business, company and trust interests are considered on their own facts, distinguishing personal legal and equitable interests from entity property.
- Inheritances, gifts and post-separation contributions are not automatically included or excluded; treatment depends on timing, source, size, use, preservation and the whole statutory assessment.
- Time limits are strict — 12 months from a divorce order taking effect for married applicants (s 44(3); leave under s 44(4)) and 2 years from the end of the relationship for de facto applicants (s 44(5); leave under s 44(6)); informal understandings without orders or a Binding Financial Agreement are not enforceable as final property arrangements.
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Property settlement after separation covers the adjustment of the parties' property, liabilities and superannuation under the Family Law Act 1975 (Cth). It applies to both married and eligible de facto couples and can be dealt with by written agreement, Consent Orders, a Binding Financial Agreement or contested proceedings.
Current statutory framework
Sections 79 (married) and 90SM (de facto) of the Family Law Act 1975 (Cth), as in force from 10 June 2025, provide the current framework for property adjustment. The Court:
- identifies the parties' existing legal and equitable rights, interests and liabilities;
- considers each party's contributions under s 79(4) or s 90SM(5);
- considers each party's current and future circumstances under s 79(5) or s 90SM(6); 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 50/50 presumption, fixed percentage, formula or mandatory sequence.
Identifying rights, interests and liabilities
Identification is a legal exercise, not a valuation exercise. Relevant items commonly include real estate, bank and investment accounts, listed and unlisted shares, business and partnership interests, interests in trusts and companies, vehicles, household contents, cryptocurrency, redundancy entitlements and superannuation, together with mortgages, personal and business loans, tax liabilities, guarantees and other liabilities. Related-party dealings and post-separation transactions may require particular attention.
Contributions
Contributions may be financial, non-financial or made in the role of homemaker or parent, and are considered across the whole of the relationship and, where relevant, after separation. Contributions to acquiring, conserving and improving property are considered, as are contributions to the welfare of the family.
Current and future circumstances
Age, health, income, property, financial resources, earning capacity, care of children, responsibilities to others, standard of living, the duration of the relationship and, where the evidence supports it, the economic effect of family violence are among the matters that may be considered under s 79(5) or s 90SM(6).
Just and equitable
Under s 79(2) or s 90SM(3), any alteration of interests must be just and equitable in all the circumstances. As the High Court confirmed in Stanford v Stanford [2012] HCA 52, that requirement is not a formality and does not import any assumption about a particular share.
Superannuation
Superannuation may be split by order or by binding financial agreement under Part VIIIB, subject to procedural fairness to the trustee and to correct drafting. See our companion guide on superannuation splitting in divorce and property settlements.
Businesses, trusts and companies
Interests in businesses, trusts and companies are considered on their own facts. Personal legal and equitable interests must be distinguished from entity property. Control, benefit, distribution history and structure are relevant. See our related guide on family trusts in divorce and property settlement.
Consent Orders and Binding Financial Agreements
Consent Orders and Binding Financial Agreements serve different purposes and have different procedural, evidentiary and setting-aside rules. See our companion guides on consent orders and binding financial agreements.
Time limits
Married applicants must ordinarily apply within 12 months of the divorce order taking effect (s 44(3); leave under s 44(4)). De facto applicants must ordinarily apply within 2 years of the end of the relationship (s 44(5); leave under s 44(6)).
Frequently Asked Questions
What is a property settlement under Australian family law?
A property settlement is the adjustment of the parties' property, liabilities and superannuation on or after separation. It may be recorded by written agreement, formalised through Consent Orders made by the Federal Circuit and Family Court of Australia, dealt with through a Binding Financial Agreement under Part VIIIA (married) or Part VIIIAB (de facto), or determined by the Court under s 79 (married) or s 90SM (de facto) of the Family Law Act 1975 (Cth).
Do de facto couples have the same rights as married couples?
In substance, yes, subject to jurisdictional gateways. Section 4AA of the Family Law Act 1975 (Cth) defines a de facto relationship, and s 90SB sets out the gateway to court-ordered property adjustment or maintenance (typically the relationship having lasted at least two years, a child of the relationship, substantial contributions with serious injustice if no order is made, or a registered relationship). Western Australian de facto property matters are governed by State legislation rather than Part VIIIAB.
How does the Court decide a property settlement?
Under s 79 and s 90SM of the Family Law Act 1975 (Cth) as in force from 10 June 2025, the Court identifies each party's existing legal and equitable rights, interests and liabilities; considers the contributions of each party; considers each party's current and future circumstances (including, where the evidence supports it, the economic effect of family violence); and must be satisfied any alteration of interests is just and equitable in all the circumstances. There is no fixed formula, no mandatory step-based test and no automatic percentage.
Is property always divided 50/50?
No. There is no presumption of equal division. The outcome depends on the parties' particular rights, interests and liabilities, their contributions and their current and future circumstances, and on the just-and-equitable requirement. Equal, 60/40, 70/30 and other divisions are all possible on the facts.
How is superannuation dealt with?
Superannuation may be split by order or by binding financial agreement under Part VIIIB of the Family Law Act 1975 (Cth), subject to procedural fairness to the trustee and to correct drafting. Different accounts (accumulation, defined-benefit and self-managed) are valued and split under the Family Law (Superannuation) Regulations 2001 (Cth) and current fund requirements.
How are businesses, trusts and companies treated?
Interests in businesses, companies and trusts are considered on their own facts. Personal legal and equitable interests must be distinguished from entity property. Control, benefit, distribution history and structure are relevant. Third-party rights and the position of any corporate trustee may need to be addressed procedurally.
How are inheritances and gifts treated?
There is no automatic inclusion or exclusion. Inheritances and gifts are considered under s 79 or s 90SM as part of contributions, current and future circumstances and the just-and-equitable requirement, having regard to timing, source, size, use and preservation.
What can be recorded in Consent Orders or a Binding Financial Agreement?
Consent Orders record an agreed outcome that the Court is satisfied is just and equitable. A Binding Financial Agreement is a private agreement made in accordance with the strict requirements of Part VIIIA or Part VIIIAB, including independent legal advice and prescribed statements. Each has distinct evidentiary, procedural and setting-aside rules and different tax and duty consequences.
What are the time limits?
Married applicants must ordinarily apply within 12 months of the divorce order taking effect (s 44(3); leave under s 44(4)). De facto applicants must ordinarily apply within 2 years of the end of the relationship (s 44(5); leave under s 44(6)).
When should we obtain advice?
Before signing any agreement, transferring assets, changing entity structures, refinancing or commencing proceedings. Early advice supports proper disclosure, proportionate expert evidence and appropriate use of Consent Orders or a Binding Financial Agreement.
How Parke Lawyers Can Help
Parke Lawyers acts for separating couples across Australia on the full property-settlement process under sections 79 and 90SM as amended with effect from 10 June 2025, through our Family Law team. Engage us early so disclosure, valuation and the balance sheet can be framed properly from the outset.
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Our family law team can advise on separation, property settlement, superannuation splitting, consent orders and binding financial agreements.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.