How is property divided after separation?

Property after separation is divided through a structured four-step assessment, not a 50/50 split by default: what is in the pool, superannuation included, what each person contributed, what each person needs next, and whether the result is just and equitable. Married couples must generally start proceedings within twelve months of divorce, and de facto partners within two years of separation. Here is how each step works.

In this article

1. First: everything goes in the pool
2. Second: contributions of money and everything else
3. Third: future needs
4. Fourth: is the result just and equitable?
5. Can superannuation be split?
6. How long do I have to apply for a property settlement?
7. Three persistent myths, corrected
8. How do we make it final: consent orders or a BFA?
9. The bottom line
10. Common questions

First: everything goes in the pool

The starting point is a complete balance sheet of the property pool: the home, other real estate, bank accounts, shares, businesses, trusts and their realities, vehicles, tools, cryptocurrency, and every liability, from the mortgage to the credit cards to the tax debt. Superannuation counts, valued at its real figure. It does not matter whose name an asset is in, or whether it was acquired before, during or after the relationship: it enters the pool, and the questions of contribution and need do the sorting. Both parties owe a duty of full and frank disclosure, now embedded in the Act itself, and hiding assets ends badly: adverse inferences, costs orders, and settlements reopened years later.

Second: contributions of money and everything else

The court then weighs what each person contributed across the whole relationship: financial contributions such as deposits, income, inheritances and gifts from parents; non-financial contributions such as renovating the house or working unpaid in the business; and, recognised by the Act as contributions in their own right, homemaking and parenting. The parent who raised children while the other built a career is not a dependant in this framework; they are a contributor. Initial contributions usually carry more weight in a short relationship, and in a long one they are not simply written off by time but are weighed against everything else both parties contributed over the years, which often reduces their significance. Inheritances late in a relationship are usually weighed towards the receiving party. Since June 2025 the court must also consider the effect of family violence on a party's ability to contribute. Deliberate or reckless wastage of assets is also now expressly considered, at the next step, when the court weighs each party's current and future circumstances. See our guide to the 2025 reforms.

Third: future needs

Contributions look backward; this step looks forward. Age and health; income and realistic earning capacity; who has the primary care of children, and the housing that care requires; access to resources such as family trusts or a new partner's support. This is where percentages move, most visibly towards a primary carer with lower earning capacity. An assessment of contributions at equal might become 60/40 once the next decade of school runs is priced in. Read our guide to spousal maintenance in Victoria.

Fourth: is the result just and equitable?

Finally the court steps back and asks whether the outcome, in dollars and in practice, is just and equitable, including how it is delivered: who keeps the home, what is sold, how super is split, when payments are made. The four steps are now codified in the Act, applying equally to married and de facto couples, which makes the reasoning more transparent for the people living it.

Can superannuation be split?

Super is often the second-largest asset in the pool and it can be split by court order or formal agreement, with part of one person's balance transferred into the other's fund. Splitting does not convert super into cash; it remains preserved until retirement. For long marriages where one partner worked part-time for decades, the super split is frequently the difference between a fair outcome on paper and a fair retirement in fact.

How long do I have to apply for a property settlement?

Married couples must generally commence property proceedings within twelve months of divorce; de facto partners within two years of separation. Outside those windows you need your former partner's consent or the court's permission. But the deeper reason to settle promptly is that the pool is valued at settlement, not separation: your post-separation savings, her redundancy and the market's movement all stay in play while nothing is finalised. Separated for years without formalising anything is the riskiest financial position in family law.

Three persistent myths, corrected

"The house is in my name, so it is mine." Title does not decide family law outcomes. Property in one name still enters the pool, and contributions of every kind, including years of unpaid parenting, buy a share of it.

"They cheated, so I get more." Australia's system is no-fault. Conduct moves the needle only through its economic consequences: wastage of assets, or family violence with economic effects, both now expressly recognised.

"We agreed between ourselves, so it is settled." Until formalised by consent orders or a binding financial agreement, nothing is final: the claim survives, the tax and duty concessions are unavailable, and future windfalls remain in play.

How do we make it final: consent orders or a BFA?

Most couples never see a courtroom. Agreements, whether reached directly, through negotiation or at mediation, are made binding either by consent orders, which the court approves on the papers with a just-and-equitable check, or by a binding financial agreement. An application for consent orders is filed with the Federal Circuit and Family Court of Australia, whose website has the forms, fees and guidance. An informal deal does not stop either of you going to court later, and it cannot split superannuation. A transfer of property under it is also harder to bring within the stamp duty exemption, which applies only where the Commissioner of State Revenue is satisfied that the transfer was made solely because the relationship broke down, and consent orders or a binding financial agreement are the clearest way to show that. Consent orders for an agreed property settlement are a fixed fee of $3,025 including GST, and our fees page sets out what that covers. Where a matter must be litigated, we prepare it thoroughly and fight it firmly, but the destination for most families is a signed, sealed settlement and a clean start. Start at our family law page.

The bottom line

Property settlement is not a coin-flip and not a war: it is a structured assessment you can prepare for. Know the pool, evidence your contributions, be honest about future needs on both sides, and formalise whatever you agree. The couples who fare worst are not the ones who fight; they are the ones who drift, leaving claims open and futures unpriced. Get the picture early, and most of the fear leaves the process.

And once the settlement is done, close the loop: update your will, your powers of attorney and your super nominations, so the next chapter starts with documents that match it.

Just separated and not sure where to start? Our free first 30 days checklist sets out the practical steps in order, including this deadline.

Common questions

Is property always divided 50/50 after separation?

No. That is a myth, and it is not the law, and never has been. Australian law reaches a division through a structured four-step assessment of what exists, what each person contributed, and what each person needs next.

How long do I have to apply for a property settlement?

Married couples must generally commence property proceedings within twelve months of divorce; de facto partners within two years of separation. Outside those windows you need your former partner's consent or the court's permission.

Is superannuation included in a property settlement?

Yes: superannuation counts in the property pool, valued at its real figure, and it can be split by court order or formal agreement, with part of one person's balance transferred into the other's fund. Splitting does not convert super into cash; it remains preserved until retirement.

Do we need consent orders if we have already agreed on a split?

In practical terms, yes: until an agreement is formalised by consent orders or a binding financial agreement, nothing is final. The claim survives, the tax and duty concessions are unavailable, and future windfalls remain in play.

Sources: Family Law Act 1975 (Cth), sections 44, 71B, 79, 90RI and 90SM, and Parts VIIIA and VIIIB; Duties Act 2000 (Vic), section 44.

This guide reflects the law applying in Victoria as at September 2026. It is general information only, not legal advice, and does not take your circumstances into account.