There's no fixed entitlement. Australian family law doesn't give either person an automatic half, or any other set percentage, of the property after separation. Under the Family Law Act 1975 (Cth), the court looks at everything you and your former partner own and owe, what each of you contributed, and each person's current and future circumstances, such as income, health and the care of children. It will only change who owns what if that is just and equitable. Your share depends on those facts, and strict time limits apply.
No. The Family Law Act doesn't contain a formula, and it doesn't start from 50/50. Some settlements end up close to an equal split. Many don't.
The High Court made this clear in Stanford v Stanford [2012] HCA 52. The court starts by working out what each person actually owns now. It then asks whether it is just and equitable to change that, and it can't answer that question by assuming either person already has a right to have the property divided. In other words, your "entitlement" is the result of the process. It isn't the starting point.
The property pool is the total of everything both of you own, less everything you owe. It usually includes property in joint names, property in your sole name and property in your former partner's sole name. It doesn't matter when or how it was acquired. Property you owned before the relationship, gifts, inheritances and assets bought after separation can all form part of the pool, although where they came from can matter a great deal later in the process.
A typical pool might include the family home, investment properties, bank accounts, shares, cars, business interests and superannuation. Superannuation is treated as property under the Act and can be split between you. Debts go in too, including the mortgage, personal loans, credit cards and tax debts.
Some things aren't strictly property but are still taken into account. An example is a benefit you receive from a family trust that you don't control. These are called financial resources. They usually aren't divided, but they can affect what's fair.
Assets are generally valued as at the time of the settlement or hearing, not the date you separated. If the house has gone up in value since separation, it's the current value that usually counts.
Since 10 June 2025, the Act sets out the process in section 79 for married couples and section 90SM for de facto couples. The court must:
The Attorney-General's Department says couples negotiating outside court should follow the same process. The court can consider the steps in a different order where that produces a just and equitable outcome.
The 2025 changes apply to cases started on or after 10 June 2025 and to earlier cases that hadn't reached a final hearing by that date. Property orders made before the changes aren't affected.
Contributions are looked at broadly. They include financial contributions such as wages, savings, property you brought into the relationship, an inheritance, or money given by your parents. They also include non-financial contributions to property, such as renovating the house yourself or working unpaid in a family business.
The Act also recognises contributions to the welfare of the family, including as a homemaker and parent. The court doesn't simply add up who earned more. Caring for children and running the household are contributions the Act specifically requires the court to consider.
Contributions made after separation count as well. Paying the mortgage alone for two years, or caring for the children with little support, can be relevant.
Since June 2025, the court must also consider the effect of any family violence on a person's ability to make contributions. We'll deal with family violence and property settlements in a separate article.
This is where the court looks forward. Section 79(5) (and section 90SM(5) for de facto couples) lists the matters to be considered, so far as they're relevant. They include:
In practice, this step often results in an adjustment in favour of the person with the lower earning capacity or the main care of young children. It's not a needs-only exercise, though. The court considers these matters alongside contributions, not instead of them.
Legal ownership is the starting point, but it doesn't decide the outcome. A house registered in your former partner's sole name can still be divided between you. Equally, owning half of a property on title doesn't mean you'll finish with half of the overall pool.
Title still matters in practical terms before the settlement is finalised, particularly if someone is trying to sell, borrow against or transfer property. Our articles on what happens to the family home after separation and putting a caveat on your ex's property explain those issues in more detail.
The same property principles apply to de facto couples, but there's an extra threshold. Under section 90SB, the court can only make property orders if the relationship lasted at least two years, there's a child of the relationship, the relationship was registered, or the person applying made substantial contributions and would suffer serious injustice without an order. There are also geographical requirements. If the relationship was short, get advice early about whether you qualify.
Yes, and it's strict. If you were married, you have 12 months after your divorce order takes effect to start property proceedings. If you were in a de facto relationship, you have two years after the relationship ended.
You don't need to be divorced to finalise a property settlement. Many people sort out property first.
After the time limit, you need your former partner's consent or the court's permission (called leave). Leave isn't automatic. You generally have to show you or a child would suffer hardship if leave wasn't granted. The Federal Circuit and Family Court of Australia also recommends filing consent orders within these time limits.
Most property settlements are agreed without a judge deciding them. But a handshake agreement, or even a signed letter, doesn't finalise your financial relationship. Either of you could still make a claim later, and superannuation can't be split without formal documents.
There are two ways to make an agreement binding. The first is consent orders. You both sign proposed orders and file them with the Federal Circuit and Family Court of Australia, which checks that they're just and equitable before making them. The second is a binding financial agreement, which is a private contract under the Act. For it to be binding, each of you must get independent legal advice before signing.
If you can't agree, the court's rules require you to take genuine steps to resolve the dispute before filing. That usually means trying dispute resolution, setting out your claim in writing and exchanging financial documents. There are exemptions, including where there is family violence or a risk of it, or the matter is urgent. The court's pre-action procedure brochure explains the steps.
Both of you also have a legal duty to give full and frank financial disclosure. That duty is now in the Act itself, at section 71B for married couples and section 90RI for de facto couples. It applies while you're negotiating, not just once a case starts. If you're worried your former partner isn't being open about their finances, see our article on what to do if your ex is hiding income or sending money overseas.
This is a fictional example to show how the factors interact. It isn't a prediction of any outcome.
Priya and Daniel were married for 14 years and have two children, aged nine and 12. When they married, Priya put an $80,000 deposit from the sale of her unit towards the family home. Daniel worked full time throughout. Priya went part time after their first child was born and did most of the caring for the children. Since separating, the children have lived mainly with Priya, and Daniel earns about twice what she does.
Their pool includes the home (now worth $1.4 million with a $600,000 mortgage), both superannuation accounts, some savings and a car loan.
Priya's deposit is a relevant financial contribution, but after 14 years it will be weighed against everything else both of them contributed. Daniel's income paid most of the mortgage. Priya's work as the primary carer is a significant contribution in its own right. The court would then look at their current and future circumstances. Priya's lower earning capacity, and her need to house the children, could justify an adjustment in her favour.
What that means in dollar terms depends on the evidence. The example shows why "entitlement" can't be answered with a percentage until the whole picture is known.
Start collecting documents early, while you still have access to them. That includes bank and credit card statements, superannuation statements, mortgage and loan statements, tax returns, payslips and any business or trust records. If you brought property into the relationship, or received an inheritance or a gift from family, keep the records showing where the money came from and where it went.
A few other practical points:
If you have concerns for your safety, call 000 in an emergency or 1800RESPECT on 1800 737 732.
Urban Law Group advises people in Sydney on family law property settlements, from early advice about what the property pool looks like through to consent orders, binding financial agreements and, where agreement isn't possible, proceedings in the Federal Circuit and Family Court of Australia.
Our Principal Lawyer, Katrene Halteh, also practises in wills and estates and Supreme Court property disputes. That's useful where a settlement involves inherited assets, family trusts or property owned with relatives. If you'd like to understand where you stand before you negotiate, you can contact us to arrange a consultation.