Property settlement is where most family law disputes are actually fought and resolved. It covers everything you and your partner own, owe, or contribute to — the home, investment properties, businesses, superannuation, share portfolios, inheritances received during the relationship, even crypto holdings. The Court applies a structured four-step process, and once you know that structure the question of who gets what becomes far less mysterious.
The four-step process — how the Court actually divides property
The Family Court applies a four-step process to every property matter. Step one: identify and value the property pool — everything either party owns, anywhere in the world, as at today's date (not the date of separation). Step two: assess each party's contributions — financial, non-financial, and as homemaker or parent. Step three: assess each party's future needs — income disparity, care of children, age, health, ability to earn. Step four: stand back and check the result is just and equitable in all the circumstances.
Most settlement negotiations are really arguments about steps two and three — usually expressed as percentages of the net pool. Knowing the realistic range early lets you negotiate from a position of clarity rather than fear.
Time limits — the trap that catches too many people
If you are married, you have 12 months from the date of your divorce to apply for property orders. If you are de facto, you have two years from the date of separation. Miss those limits and you need the Court's permission to apply out of time, which is discretionary and never guaranteed. I have seen too many clients who waited 'until things settled down' and then found themselves needing to apply out of time, or being told they had no realistic prospect at all.
If you have separated and not finalised property — including superannuation — get advice now, even if you are getting along well.
Superannuation
Superannuation is treated as property in family law and can be split between parties by court order. It is one of the most commonly overlooked components of a settlement, particularly where the parties' super balances are very different. A super split does not generally become cash — it transfers from one party's fund to the other's — but it has real financial value and should be factored into the overall division.
Disclosure — both parties must show their hand
Both parties have a positive duty of full and frank financial disclosure. Bank statements, tax returns, super statements, business records, valuation evidence — everything relevant to the property pool must be exchanged. Failing to disclose is one of the few things that genuinely upsets the Court and can lead to orders being set aside years later when undisclosed assets come to light.
How I handle a property settlement matter
- 1Full property pool identification and realistic valuation
- 2Honest assessment of your likely percentage range under the four-step process
- 3Negotiation with the other side or their lawyer in the first instance
- 4Mediation where direct negotiation stalls
- 5If needed, application to the FCFCA for property orders
- 6Final consent orders to make the agreement legally binding and stamp-duty-free
Frequently asked questions
Is it 50/50 in Australia?
No. There is no presumption of 50/50 in Australian family law. The Court applies a four-step process based on the actual property pool, contributions and future needs. Outcomes range widely — from close to 50/50 to substantially weighted to one party — depending on the facts.
Does an inheritance count as part of property settlement?
An inheritance received during the relationship is generally treated as part of the property pool, though the contribution is typically credited to the party who received it. An inheritance received well before the relationship, or after a long separation, is usually treated differently. The detail matters.
What if my ex won't disclose their finances?
Both parties have a legal duty of full and frank financial disclosure. If the other party will not disclose, we can issue subpoenas to banks, accountants and the ATO, and the Court can draw adverse inferences. Non-disclosure also exposes the non-disclosing party to costs orders and to having any settlement set aside later.
Do I need to file consent orders even if we already agreed?
Yes — strongly recommended. A handshake agreement or even a written agreement is not enforceable as property orders and does not give you the stamp duty exemption on transferring real property between spouses. Consent orders make the agreement binding and final.
Reviewed by Elisa Rothschild BA/LLB — Principal Lawyer, Fogarty Oliver Rothschild. Admitted to legal practice in Victoria. Last reviewed 2026-05-22.
This page is general legal information about property settlement in Victoria, Australia. It is not legal advice for your specific situation. For advice on your matter, book a free initial consultation.