Property settlements after separation: what you need to know

Separation is rarely simple, particularly when property (including businesses and superannuation) and children are involved. One of the most common questions we are asked is: “Who gets what?”

In Australia,property settlements are governed by the Family Law Act 1975. The process is structured, but outcomes depend heavily on the specific circumstances of each relationship. No each case is the same.

Step 1: Identifying the asset pool
The first step is identifying and valuing the total asset pool. This includes:

• Real estate
• Savings and investments, including cryptocurrency and shares
• Businesses and trusts
• Superannuation
• Vehicles and personal property
• Liabilities and debts

Importantly, the asset pool includes everything owned individually, jointly, or through entities such as companies or discretionary trusts.

Step 2: Assessing contributions
The court then considers the contributions made by each party, including:

• Financial contributions (such as income earned by the parties during the relationship, assets brought into the relationship, and the payment of the mortgage, rates and utilities during the relationship and post-separation)
• Non-financial contributions (such as renovations conducted on any real estate during the relationship and post-separation, care provide to family members, and the completion of housework)
• Homemaker and parenting contributions

Contributions are not assessed in dollar terms. Raising children or supporting a partner’s career are recognised as relevant contributions.

Step 3: Future needs
The court also considers future factors, which include (but are not limited to):

 

• Income earning capacity
• Age and health
• Care of children
• Length of the relationship

Adjustments may be made if one either party have a future need.

Time limits apply
Strict time limits exist:

• Married couples must apply for property settlement within 12 months of a divorce order being made.
• De facto couples must apply within 2 years of separation.

Missing these deadlines can significantly complicate your position, such it is important to get advice regarding your matter as soon as possible after separation to avoid being “out of time”.

Do I need to go to court?
Most property settlements are resolved through negotiation (whether through parties themselves or solicitor correspondence) or mediation. Court proceedings are generally a last resort. However, formalising any agreement through Consent Orders or a Binding Financial Agreement is critical to ensure finality and protection from future claims.

Early advice makes a difference 
Every separation is different. Business structures, trusts, inheritances and superannuation can significantly affect outcomes.

Obtaining early legal advice helps clarify:



• The likely asset pool
• Your contribution position
• Potential future needs adjustments
• Strategic options for resolution

If you are considering separation or have recently separated, our family law team can provide clear, practical guidance tailored to your circumstances.

Do you need family law advice? Kells specialises in all areas of family law and have ateam of experienced dedicated family lawyersconveniently located throughout Sydney and the Illawarra.