Property division is not automatically 50:50
In Australia, property settlement after marriage or an eligible de facto relationship is not automatically an equal split. The Court examines assets, liabilities, contributions and present and future circumstances, and must be satisfied that any orders are just and equitable. Divorce and property settlement are separate processes; you generally need not wait for divorce.
Step 1: Identify property, debts and legal interests
Identify the parties' assets, liabilities and legal or equitable interests. These may include the family home, investment property, savings, shares, business interests, trust interests, vehicles, overseas assets, superannuation, mortgages, loans, credit cards and tax liabilities. Property held in one name is not necessarily excluded; corporate and trust structures require careful analysis.
Step 2: Assess contributions
Relevant financial and non-financial contributions can include initial deposits, employment income, renovations, work in a family business, parenting, homemaking and contributions to family welfare, before, during and after the relationship. Premarital property, gifts, inheritances and post-separation contributions may matter, but no single category is automatically protected from consideration.
Step 3: Consider current and future circumstances
The Court considers matters such as age, health, income, earning capacity, financial resources, care of children and housing needs. Differences in future financial circumstances can affect the overall division even where past contributions were similar.
Step 4: A just and equitable outcome
The proposed outcome must be just and equitable overall. Orders might involve selling a property and dividing proceeds, one person retaining a home and paying an adjustment, or splitting superannuation. Tax, transfer costs, refinancing and practical implementation also matter.
Changes effective 10 June 2025
Reforms effective 10 June 2025 clarify the statutory property-settlement framework and require consideration of the economic effects of family violence where relevant, including financial abuse. They also clarify financial disclosure duties and introduce a specific framework for family pets.
Full and ongoing financial disclosure
Parties must disclose relevant financial information, including bank statements, tax records, loans, business documents, superannuation and asset records. Disclosure is ongoing. Concealment or non-compliance may have procedural, costs and other legal consequences.
How can an agreement be formalised?
Parties may negotiate or mediate and seek Consent Orders, or enter a Binding Financial Agreement where strict legal requirements are met. Informal or verbal arrangements may not finally resolve future claims. Independent legal advice is important.
Time limits matter
For married parties, applications for property or spousal maintenance orders generally must be filed within 12 months after a divorce order takes effect. For eligible de facto couples, the general limit is two years after separation. Late applications ordinarily require Court permission, which is not guaranteed. Different jurisdictional arrangements may apply to de facto matters in Western Australia.
How Herald Legal can assist
We can help prepare asset and liability schedules, analyse contributions and future needs, obtain disclosure, review valuations, negotiate or mediate, prepare consent orders or financial agreements, and represent clients in property proceedings where required. Early organisation of financial records supports informed decisions.
General information only, not individual legal advice. Outcomes depend on facts, law and evidence. Complex trusts, companies, overseas assets and WA de facto matters may require specialist advice.
Discuss Property Division With Our Firm →
Attorney-General’s Department: 2025 Property Law Changes
FCFCOA: Property Disputes and Time Limits