One of the biggest worries that our clients experience when they are separating or going through a divorce is: who gets what?
For most people, it comes down to the practical concerns: Who will stay in the family home, what will happen to the mortgage, how will savings be divided, and whether you’ll be financially okay moving forward.
Many people assume that everything is split 50/50. In Australia, that’s not how it works. The law looks at what is fair based on your individual situation, and that can look quite different from one family to the next.
Since changes to the Family Law Act 1975 in June 2025, the process of division has been set out more clearly. But in reality, it still comes down to the same question: What is a fair outcome for both of you?
What is a property settlement?
In simple terms, a property settlement is about dividing up everything you own (and owe) after separation.
That usually includes:
- The family home
- Any investment properties
- Superannuation
- Savings and bank accounts
- Cars
- Shares or investments
- Credit cards, loans and the mortgage
One thing that often surprises people is that it doesn’t matter whose name things are in. Everything comprises part of the asset pool.
How is property actually divided?
There’s no single formula, but there is a process the Court follows if you can’t reach an agreement.
The first step is working out what’s in the pool. This means looking at what your assets and debts are and what they’re worth. That means both people need to be upfront about disclosing their finances. This is where things can get tricky, especially if finances have been handled by one person during the relationship.
The next step is looking at contributions. Who contributed what to the relationship? That is the part many people worry about, especially if they weren’t the main income earner.
The law doesn’t just look at who brought in the money. If one of you stayed home with the kids, worked part-time, or took on most of the household responsibilities (non-financial contributions), those contributions are taken just as seriously. For example, a parent who stepped away from their career to raise children has still made a significant contribution.
The Court then considers what each of you needs moving forward (future needs). This is often where the outcome starts to shift.
For instance:
- Who will the children live with most of the time?
- Is one person earning significantly more than the other?
- Has one person been out of the workforce for a long time?
These factors can lead to one person receiving a larger share of the assets, particularly where there are ongoing care responsibilities.
Following the 2025 changes, the Court must also consider the impact of family violence, including financial control or abuse. For example, if one person controlled all the money or limited the other’s ability to work or access funds, that can now directly affect how property is divided.
Finally, the Court looks at the overall outcome and asks: Is this fair in the circumstances?
Do we have to go to Court?
Not usually.
Most separating couples are able to reach an agreement through negotiation or mediation. Going to Court is generally a last resort, and in many cases, it can be avoided.
However, it is important to formalise any agreement properly, either through Consent Orders or a Binding Financial Agreement. Without a formal agreement, there is a risk that the settlement could be reopened later on.
What about the family home?
This is often the biggest concern.
In some cases, one person keeps the home (for example, where children are involved), and the other receives a greater share of other assets or a payout. In other situations, the home may need to be sold and the proceeds divided.
There’s no automatic rule. It depends on what is financially workable and fair in your circumstances.
Time limits apply
It’s important not to leave property matters unresolved for too long.
- If you’re married, you generally have 12 months from when your divorce becomes final
- If you were in a de facto relationship, you have 2 years from the date of separation
We often see people put this off, especially when things feel amicable early on. But delays can make things more complicated down the track.
If you are unsure about where you stand, getting clear advice early can help you understand your options better and take some of the uncertainty out of the process. Call our experienced team at (03)95557233 or email admin@hls.net.au for a consultation today.
