After a marriage or de facto relationship ends, people commonly ask whether their property will automatically be divided equally.
The short answer is no. Australian family law does not begin with a presumption that each party is entitled to 50% of the property. There is also no automatic 60/40 division or other fixed formula.
The outcome depends on the parties’ property, liabilities, contributions, current and future circumstances and whether the proposed division is just and equitable.
Is 50/50 the Starting Point?
There is no automatic 50/50 starting point for a property settlement.
An equal division may be appropriate in some cases, but not in others. The outcome depends on the circumstances of the particular relationship.
Comparing your circumstances with a friend’s or relative’s settlement can be misleading. Differences in relationship length, initial assets, inheritances, parenting responsibilities, income, health, family violence and other circumstances may produce substantially different outcomes.
What Property Is Included?
The first step is ordinarily to identify the parties’ existing property, liabilities and financial resources.
The property pool may include:
- The family home and other real estate
- Bank accounts and cash
- Shares and other investments
- Businesses and company interests
- Trust interests
- Motor vehicles
- Superannuation
- Personal property
- Mortgages, credit cards and other debts
- Other financial resources
Property is not necessarily excluded merely because it is registered in one person’s name or was acquired before the relationship. The circumstances in which an asset was acquired and the contributions associated with it remain relevant.
Assets and liabilities are generally considered at their current values rather than their values at separation.
How Is a Property Settlement Determined?
From 10 June 2025, the Family Law Act 1975 expressly sets out the framework for determining property settlements.
The Court generally considers the following matters.
Whether an Order Should Be Made
The Court must consider whether it is just and equitable to make an order altering the parties’ existing property interests.
A property adjustment is not automatic merely because a relationship has ended.
Property and Liabilities
The parties’ property, liabilities and financial resources must be identified. Appropriate evidence may be required to establish ownership, value and the amount of any debt.
Depending on the matter, this may require valuations of real estate, businesses, companies, trusts or other assets.
Contributions
The Court assesses the contributions made by each party, including:
- Property owned when the relationship began
- Income and other direct financial contributions
- Contributions towards acquiring, preserving or improving property
- Gifts and inheritances
- Non-financial contributions
- Homemaking and parenting contributions
- Contributions made after separation
A party who earned most of the income is not automatically entitled to a greater share. Homemaking and parenting are recognised contributions and must be assessed in the context of the relationship as a whole.
Current and Future Circumstances
The Court then considers the parties’ current and future circumstances. Relevant matters may include:
- Age and health
- Income, property and financial resources
- Capacity for employment
- Care and housing needs of children
- Responsibilities to support another person
- The duration of the relationship
- Child support obligations
- Other circumstances recognised by the legislation
These considerations may justify an adjustment after the parties’ contributions have been assessed.
Whether the Outcome Is Just and Equitable
The Court must ultimately be satisfied that the proposed orders are just and equitable in all the circumstances.
No mathematical formula determines the result. The significance and weight of each consideration depend on the evidence and the circumstances of the particular case.
How Does Family Violence Affect a Property Settlement?
The property reforms commencing on 10 June 2025 expressly require the economic effect of family violence to be considered where relevant.
Family violence may affect:
- A person’s ability to make financial or non-financial contributions
- Their contribution to the welfare of the family
- Their income or employment
- Their health and capacity to work
- Their present and future financial circumstances
Economic or financial abuse may itself constitute family violence. Examples can include controlling access to money, unreasonably denying financial autonomy, concealing financial information or preventing a person from working.
Family violence does not produce an automatic percentage adjustment. Its economic effect must be established and assessed in the circumstances of the particular matter.
Financial Disclosure
Each party has an ongoing duty to provide full and frank financial disclosure.
Relevant documents may include:
- Bank and credit-card statements
- Tax returns and notices of assessment
- Payslips
- Superannuation statements
- Company and trust records
- Loan documents
- Property valuations
- Documents concerning the disposal or transfer of assets
Failing to disclose relevant financial information can delay proceedings and may lead to costs orders, adverse findings, orders being set aside or other consequences.
Do We Have to Go to Court?
Not necessarily. Many property matters are resolved through negotiation, mediation or another dispute-resolution process.
An agreement should ordinarily be formalised by:
- Consent orders approved by the Court; or
- A binding financial agreement, where appropriate.
An informal agreement, including a verbal agreement or private division of assets, may not provide finality or prevent a later claim.
Independent legal and financial advice should be obtained before finalising a settlement.
What Are the Time Limits?
Strict time limits apply to property proceedings:
- A married party generally must commence proceedings within 12 months after a divorce becomes final.
- A party to a de facto relationship generally must commence proceedings within two years after separation.
If the relevant period has expired, the Court’s permission may be required to commence proceedings. Permission is not automatically granted.
A married person does not have to wait for a divorce before resolving property matters.
The Result Depends on the Evidence
There is no automatic 50/50 division and no universal formula.
A reliable assessment requires consideration of:
- The complete property pool
- The parties’ respective contributions
- Their current and future circumstances
- Any relevant economic effect of family violence
- The available evidence
- Whether the proposed outcome is just and equitable
Early advice can help identify the relevant property, preserve evidence, satisfy disclosure obligations and avoid missing an applicable time limit.
Speak to a Family Lawyer
Aspire Legal advises and represents clients in property and financial settlements following marriage and de facto relationship breakdowns.
For advice about your circumstances, call 02 8806 2299 or email info@aspirelegal.com.au to arrange a consultation.
This article contains general information only and is not legal advice. The appropriate outcome depends on the facts and evidence of each matter.