Property Settlement Lawyers Sydney

Q: Is superannuation included in a property settlement?

Yes. Superannuation is treated as property under the Family Law Act 1975 (Cth) and forms part of the asset pool for both married and de facto couples. It can be divided by a splitting order, or offset against other assets so one person keeps their superannuation and the other receives more of the remaining property.

Sydney CBD, Mascot & Gladesville

When a marriage or de facto relationship ends, you need to divide your assets, superannuation and debts with your former partner. Strict time limits apply, and an agreement is not legally enforceable until it is properly formalised. Our family law team is led by Accredited Family Law Specialists and can help you reach a property settlement that protects your financial future.

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Overview: What Is a Property Settlement in Family Law?

In family law, a property settlement is the legal division of assets, liabilities and superannuation between two people after their relationship breaks down.

A family law property settlement applies whether you were married or in a de facto relationship. Your property is not automatically divided when you separate. You and your former partner must either reach an agreement and formalise it, or ask the court to decide.

A property settlement is also separate from your divorce. A divorce order ends your marriage. It does not divide your property. You can begin negotiating your property settlement as soon as you separate, and you do not need to wait for a divorce to do it.

Getting a property settlement right matters because it sets your financial position for years afterwards, and a formalised outcome is very difficult to reopen.

Book a consultation with VRT Lawyers to discuss how your assets, debts and superannuation should be divided.

Property Settlement Law in NSW and Australia

In NSW, property settlements are governed by the Family Law Act 1975 (Cth) and heard in the Federal Circuit and Family Court of Australia (FCFCOA).

Two deadlines govern when you can apply for a property settlement:

Married couples: must apply within 12 months from the date your divorce order takes effect.
De facto relationship: must apply within 2 years from the date of separation.

Property Settlement Under the Family Law Act 1975 (Cth)

Several distinct provisions govern how property is divided after separation. Married couples and de facto couples are dealt with under separate but near-identical provisions:

Alteration of property interests (s 79 for married couples; s 90SM for de facto couples): the framework the court uses to divide an asset pool.
Superannuation splitting (Part VIIIB): the mechanism allowing superannuation to be divided. Part VIIIB covers both married and de facto couples.
Binding financial agreements (Part VIIIA for married couples; Part VIIIAB for de facto couples): a private contract dividing property without court approval.
Duty of financial disclosure (s 71B for married couples; s 90RI for de facto couples): the obligation on both parties to disclose their full financial position.
Time limits (s 44): the deadlines for applying to the court.
Setting aside final orders (s 79A): the limited grounds on which a finalised property settlement can be reopened.

The framework is more involved than most people expect. Married and de facto matters run on different clocks, and the method you use to formalise an agreement determines whether it can be enforced.

Early advice from our family lawyers will help you choose the right pathway before you commit to anything.

Property Settlement Time Limits for Married Couples

If you were married, you must start property settlement proceedings within 12 months of the date your divorce order takes effect (s 44(3)).

A common and costly misunderstanding is that this period runs from the date you separated. It does not. The clock only starts when the divorce order takes effect. If your divorce order took effect on 1 March 2026, your deadline is 1 March 2027.

If you have separated but have not divorced, no clock is running yet. You can still apply for a property settlement, and there is no deadline until a divorce order takes effect. We still recommend resolving your property matters early. Assets change in value, financial circumstances shift, and an unresolved settlement leaves both people exposed.

Property Settlement Time Limits for De Facto Couples

If you were in a de facto relationship, you must apply within 2 years of the date of separation (s 44(5)).

Unlike married couples, there is no divorce order to start the clock, so the period runs from the date the relationship ended. If your relationship ended on 15 June 2026, your deadline is 15 June 2028.

The date a de facto relationship ended is often disputed, particularly where a couple separated gradually or continued living under one roof. Because that date sets your deadline, it is worth establishing it clearly and early. Our family lawyers help clients evidence the end of a de facto relationship using financial records, communications and changes in living arrangements.

Missing the Statutory Deadline

If your deadline has passed, you are out of time, but you are not necessarily out of options. There are two ways to proceed:

By consent: If both you and your former partner consent, an application can be made after the deadline without the court's permission. This is frequently the simpler path where the relationship is workable. If a court later finds that consent was obtained by fraud, duress or unconscionable conduct, it can dismiss the proceedings.
By leave of the court: If your former partner will not consent, you must ask the court for permission to apply out of time. The court will only grant leave if it is satisfied that hardship would be caused to you or a child if permission were refused (s 44(4) for married couples; s 44(6) for de facto couples). Leave is granted only in limited circumstances and is never guaranteed.

If you think your deadline has passed or is close, speak to us promptly. The sooner we assess your position, the more options remain open.

Book a consultation with our property settlement lawyers to confirm which deadline applies to you.

How Property Is Divided After Separation

There is no automatic 50/50 rule in Australia and no fixed formula applies.

Instead, the court works through a structured set of considerations set out in the Family Law Act 1975 (Cth) and reaches a division that is just and equitable on the facts of your matter. The same framework applies to married couples (s 79) and de facto couples (s 90SM).

What Goes Into the Asset Pool

A property settlement starts with a complete picture of what you and your former partner own and owe. This is the asset pool, and it captures far more than most people expect.

The pool typically includes:

Real property: the family home, investment properties and vacant land.
Cash and investments: bank accounts, savings, shares and managed funds.
Superannuation: all funds held by either party.
Business interests: companies, partnerships, professional practices and shareholdings.
Trust interests: entitlements under, or control of, a family or discretionary trust.
Personal property: vehicles, boats, jewellery, artwork and household contents.
Liabilities: mortgages, personal loans, credit card debt, tax debts and business borrowings.

Three categories catch people out. Assets you owned before the relationship began still form part of the pool. Assets acquired after you separated are generally included as well. And holding an asset in your sole name does not take it out of the pool, regardless of whose name is on the title.

Our family lawyers help you build an accurate balance sheet at the outset, so you are negotiating from a complete picture rather than an assumption.

How the Court Decides

Once the asset pool is established, the court works through a sequence set out in the legislation.

Identify what exists: The court identifies the existing legal and equitable interests in property, and the existing liabilities, of both parties (s 79(3)(a); s 90SM(3)(a)).
Assess contributions: The court considers the financial and non-financial contributions each person made, including contributions as a homemaker or parent (s 79(3)(b)(i) and s 79(4); s 90SM(3)(b)(i) and s 90SM(4)). Raising children and running a household count. They are not a lesser form of contribution than earning an income.
Assess current and future circumstances: The court considers each person's position going forward (s 79(3)(b)(ii) and s 79(5); s 90SM(3)(b)(ii) and s 90SM(5)). This is a long list, and the factors that most often move the outcome include age and health, income and earning capacity, who cares for children under 18, the duration of the relationship and its effect on each person's earning capacity, the extent to which one person contributed to the other's career, and whether either person is now living with a new partner.
Check the result is just and equitable. The court must not make an order unless satisfied that, in all the circumstances, it is just and equitable to do so (s 79(2); s 90SM(2)).

An equal division is sometimes the outcome but it is never the starting point.

Because the third step is broad and discretionary, it is where experienced advice makes the most practical difference. Our Accredited Family Law Specialists identify which factors genuinely apply to your circumstances and put them properly before the other side or the court.

How Family Violence Affects a Property Settlement

Family violence is now an express consideration in property settlements. This applies equally to married couples and de facto couples, and the court examines it in two distinct ways.

First, the court considers the effect of family violence on a person's ability to make contributions to the relationship (s 79(4)(ca); s 90SM(4)(ca)). Someone prevented from working, studying or contributing to the household should not be treated as having contributed less.

Second, the court considers the effect of family violence on the other person's current and future circumstances (s 79(5)(a); s 90SM(5)(a)). This recognises the ongoing financial consequences that can follow, including reduced earning capacity and health impacts.

These matters require careful handling. If family violence is part of your situation, our family lawyers can advise you calmly and privately. You can also read more about family violence and ADVOs.

What Happens to the Family Home

During separation, both people are generally entitled to remain in the family home regardless of whose name is on the title. Neither party can force the other to leave without their consent or a court order. Where there are safety concerns, a court can make an order excluding one person from the home.

Ultimately, the home is either sold and the proceeds divided, or one person keeps it and the other is compensated from elsewhere in the asset pool.

Many people assume the parent the children live with automatically keeps the house. There is no such rule. The care of children under 18, including the need to provide appropriate housing for them, is one consideration among many (s 79(5)(f); s 90SM(5)(f)). It is weighed alongside contributions, earning capacity and the overall size of the pool.

Whether keeping the home is realistic usually turns on whether you can refinance the mortgage in your sole name. We work through that question with you early, before it becomes an obstacle late in a negotiation.

Book a consultation to understand how the law applies to your asset pool.

Superannuation Splitting in a Divorce or Separation

Superannuation is treated as property under the Family Law Act 1975 (Cth) and forms part of your asset pool. Part VIIIB of the Act governs superannuation splitting for both married and de facto couples.

For many separating couples, superannuation is the single largest asset they hold, sometimes exceeding the equity in the family home. It is also the asset most often overlooked, particularly by a person who reduced their working hours to raise children and whose balance is smaller as a result.

How Superannuation Is Valued

You cannot divide superannuation until you know what it is worth for family law purposes, which is not always the figure on a member statement.

There are two ways to obtain the information, and which one is available depends on whether court proceedings have started.

If you know which fund holds the superannuation, a formal request can be made directly to the fund trustee using the court-approved forms in the Federal Circuit and Family Court's Superannuation Information Kit. This can be done before anything is filed, during negotiations. Some funds charge an administrative fee.

If you do not know where your former partner's superannuation is held, you can apply through the Commonwealth Courts Portal for the Australian Taxation Office to release those details. This route is only available once property settlement proceedings are on foot.

Our family lawyers can advise which route suits your circumstances and prepare the request. If you suspect your former partner holds superannuation they have not disclosed, we can help you use the formal mechanism to find it.

Superannuation Splitting Orders

A superannuation splitting order transfers part of one person's superannuation interest to the other. It can be made by consent order, by court order, or by agreement between the parties.

A split does not put cash in your bank account. The transferred amount stays within the superannuation system, preserved in the receiving person's fund until they meet a condition of release such as reaching preservation age.

A split can be expressed as a base amount (a fixed dollar figure) or as a percentage of the interest. Where markets move between the date of the order and the date the fund implements it, a base amount and a percentage produce different results, and the risk falls on different people. We can advise on which structure suits your circumstances.

Once formalised, the order or agreement must be served on the fund trustee, who then implements the split. Where the split is made by agreement rather than court order, you must serve a copy of your divorce order with it if you are divorced. If you are not divorced, you must serve a separation declaration that is no more than 28 days old, unless the declaration already forms part of the agreement (s 90XI). An out-of-date declaration will delay the split.

Superannuation Splitting vs Offsetting

You do not have to split superannuation at all. An alternative is offsetting, where one person keeps their superannuation intact and the other receives a larger share of the non-superannuation assets, such as the family home or cash.

Each approach suits different circumstances. Offsetting gives one person immediate access to assets they can use now, while splitting retains a larger preserved balance they cannot touch until retirement. That trade-off depends on your age, how close you are to retirement, how liquid the rest of the pool is, and what each of you actually needs.

Our family lawyers model both approaches so you can see the practical difference before you agree to either.

The Trustee's Role: Why Your Super Fund Must Be Notified First

Superannuation funds are managed by trustees, and a court cannot make an order binding a trustee unless that trustee has been accorded procedural fairness (s 90XZD).

In practice, this means the fund must be told about the proposed orders before they are made. For consent orders, the trustee must be notified in writing at least 28 days before the application is filed, and has 28 days to object to the wording. Trustees sometimes object, usually because the drafting will not work with the fund's own rules.

This step takes time and needs to be built into your timeline. Once an order binds a trustee, it also binds any later trustee of that fund. We manage this process for you and settle the wording with the fund so your orders are workable when they reach the court.

Payment Flagging: Stopping Your Former Partner Accessing Their Super

If you are concerned that your former partner may access or withdraw their superannuation before your settlement is resolved, a payment flag can be placed on the interest.

A flag does not divide anything. It directs the fund not to make a splittable payment from that interest until the flag is lifted, which preserves the asset while the settlement is negotiated. Like a split, a flag can be put in place by agreement or by court order, and where it is made by agreement the trustee must be served with either a copy of the divorce order or a separation declaration no more than 28 days old (s 90XK).

Flagging is most useful where a person is approaching preservation age, has already met a condition of release, or where there are genuine grounds to think a fund may be drawn down. If that describes your situation, raise it with us early.

Book a consultation to discuss how your superannuation should be dealt with.

Complex and Disputed Asset Pools

Not every asset pool is a house and two superannuation accounts. Where a matter involves a business, a family trust, an inheritance or a former partner who is not being open about their finances, identifying and valuing the pool becomes the main work of the settlement.

Disputes often arise over what an asset is worth and whether everything has been disclosed.

Business and Company Valuation

A business is part of the asset pool, and how it is dealt with depends on who owns it.

Where one person owns the business, the other is still entitled to a share of its value, even if they never worked in it. Where both people own it, a decision is needed on whether one buys the other out, whether it is sold, or whether they continue as co-owners. Where the business is held through a company or trust alongside third parties, such as business partners or family members, the interests of those third parties have to be worked through as well.

Valuing a business is a specialist exercise. Depending on the business, a valuer may assess it on its future maintainable earnings, or on the net value of its underlying assets, and the two approaches can produce very different figures. The court expects a single expert to be jointly engaged rather than each side running competing valuations.

We instruct valuers, test their assumptions where the figures do not reflect reality, and structure settlements that keep a functioning business intact where that is the sensible outcome.

Family Trusts

Discretionary family trusts are frequently assumed to be beyond the reach of a property settlement. That assumption is often wrong.

The court looks past the legal ownership to who actually controls the trust. Control usually sits with the trustee and the appointor, and where one person effectively controls a trust, its assets are commonly treated as part of the divisible pool (Kennon v Spry [2008] HCA 56). Where a person receives distributions but has no control, the trust may instead be treated as a financial resource. The court must still take each party’s financial resources into account (s 79(5)(c); s 90SM(5)(c)), so the trust can affect the outcome without forming part of the pool itself.

Getting this right requires reading the trust deed and examining the history of distributions and control. Our family lawyers regularly deal with trust structures in property settlements and can advise on how yours is likely to be treated.

Financial Disclosure

Both parties have a legal duty to give full and frank disclosure of their financial position, in a timely manner (s 71B for married couples; s 90RI for de facto couples).

This duty is broader than most people realise. It applies while you are preparing for a property settlement, before anything is filed, and it continues throughout any proceedings until they are finalised. It is not something that only begins when you get to court.

You should start gathering these documents early:

Tax returns and notices of assessment
Bank statements for all personal, joint and business accounts
Superannuation member statements
Property valuations or appraisals
Financial statements for any business, company or trust
Loan, mortgage and credit card statements

The court's rules also require your lawyer to explain this duty to you, including what happens if it is not met. Our family lawyers make sure you understand it from the start, because disclosure problems are far easier to prevent than to fix.

When a Party Refuses to Disclose

You cannot refuse to disclose your finances. If a person fails to comply, the court has a broad range of powers and uses them.

The court may take the failure into account when dividing the property, make costs orders against the person, make specific orders compelling disclosure, impose sanctions where an order is contravened, punish the person for contempt, or stay or dismiss all or part of their case.

There is a further consequence that outlasts the proceedings. If a settlement is finalised and undisclosed property later comes to light, the court can set the orders aside under s 79A. A person who conceals assets does not simply risk losing the argument. They risk having the whole settlement reopened years later.

If your former partner is withholding documents, we can apply to compel disclosure rather than let the matter stall.

Hidden and Undisclosed Assets

Sometimes disclosure is not just incomplete but deliberately misleading. Common indicators include transfers of money to family members shortly before or after separation, accounts you were never told about, a business that suddenly reports lower income, or unexplained company expenses.

These matters are provable. Subpoenas can be issued to banks, accountants and employers, forensic accountants can trace funds through entities, and the ATO pathway described above can locate undisclosed superannuation.

If you suspect assets are being hidden in your property settlement, contact us. Tracing is far more effective before funds have been moved and re-moved.

Wastage: Deliberate or Reckless Spending of Assets

Wastage is the deliberate or reckless dissipation of assets by one person, such as gambling away savings, spending heavily after separation or selling an asset well below its value.

In Shinohara & Shinohara [2025] FedCFamC1A 126, the Full Court held that money which has been spent can no longer be notionally added back into the balance sheet. Only property that actually exists is divided.

That does not mean wastage is ignored. The court now considers the effect of any wastage caused intentionally or recklessly when it assesses each person's current and future circumstances (s 79(5)(d); s 90SM(5)(d)). The practical effect is that evidence matters more than it used to: what was spent, when, and whether it was reasonable.

Where a former partner is actively disposing of assets, we can seek urgent orders to restrain further dealings and preserve what remains.

Inheritances and Gifts

An inheritance is not automatically excluded from a property settlement. How it is treated depends on when it was received and what happened to it afterwards.

An inheritance received early in a long relationship, and then used for the family, is usually treated as a contribution that has been absorbed into the joint pool over time. An inheritance received shortly before or after separation, and kept separate, is more likely to be treated differently. Ambiguity often exists between these two distinct positions.

Gifts from family, including deposits towards a first home, are assessed in a similar way. Whether the money was a gift or a loan is a question that comes up constantly, and the answer affects the asset pool.

If an inheritance or a family gift forms a meaningful part of your asset pool, it is worth getting advice on how it is likely to be characterised before you start negotiating.

Book a consultation to discuss a complex or disputed asset pool.

Reaching and Formalising Your Settlement

Most property settlements are resolved without a final court hearing. But reaching an understanding with your former partner is only half the job. Until an agreement is properly formalised, it is not enforceable, and either person can change their mind.

Negotiation and Mediation

Most matters settle through negotiation between lawyers, often supported by a mediator or family dispute resolution practitioner where direct discussions have stalled.

It is worth understanding that litigation is not a separate track that replaces negotiation. If proceedings are filed, negotiation continues alongside them, and the court itself runs conciliation conferences designed to help parties settle. Most matters that are filed still resolve by agreement rather than by judgment.

The Federal Circuit and Family Court can also make consent orders dealing with your property settlement, your parenting arrangements and your spousal maintenance in the same application. You do not need separate processes for each.

Our approach is to pursue a negotiated resolution first, because it is faster, more private and leaves you in control of the outcome. Where the other side is unreasonable, our family lawyers and Accredited Family Law Specialists have the experience to run the matter in court.

Informal Agreements

An informal agreement is a verbal understanding, or something written up between the two of you, that has never been formalised. It is not legally enforceable.

If you rely on one, your former partner can change their mind, make a further claim years later, or simply not do what they promised. An informal agreement also cannot be used to split superannuation. A property transfer under it is exempt from NSW transfer duty only if the Chief Commissioner of State Revenue is satisfied the agreement was made to divide your property after the relationship ended.

An informal agreement is a starting point, not a settlement. Our family lawyers can turn your informal agreement into a binding document.

Consent Orders: Formalising Your Agreement Through the Court

Consent orders are your written agreement, approved by the Federal Circuit and Family Court of Australia. You file an Application for Consent Orders setting out the agreed division, and a registrar reviews it. Neither of you needs to attend a hearing.

The registrar will only approve the orders if the division is just and equitable, which is a genuine check rather than a formality. Once approved, consent orders are binding and enforceable in the same way as orders made after a hearing.

Consent orders are the most common route for couples who have reached agreement and want certainty. Court filing fees apply, and current fees are published on the Federal Circuit and Family Court's fees page.

VRT Lawyers can draft consent orders for you, ensuring they are properly worded, workable with your superannuation fund, and clear about who does what and when.

Binding Financial Agreements: Private and Flexible

A binding financial agreement is a private contract between you and your former partner. It does not go before the court and does not require a registrar's approval, which gives it more flexibility than consent orders.

That flexibility comes with strict requirements. Both parties must receive independent legal advice before signing, and each lawyer must provide a signed statement confirming that advice was given (s 90G for married couples; s 90UJ for de facto couples). An agreement that does not meet these requirements may not be binding at all. Even a binding agreement can be set aside by a court in limited circumstances, sometimes years later, which is the risk that comes with avoiding court oversight.

A binding financial agreement can be the right instrument where the division is unusual, where privacy matters, or where a registrar may be unlikely to approve the arrangement as just and equitable. It needs to be drafted carefully.

Our Accredited Family Law Specialists regularly draft binding financial agreements and provide the independent advice required where the other side has prepared one.

Which Property Settlement Option Is Right for You

The right route depends on your circumstances, the complexity of your pool and your relationship with your former partner.

Option	Enforceable	Court involvement	What it requires
Informal agreement	No	None	Nothing, and it protects nothing
Consent orders	Yes	Approved by a registrar without a hearing	Agreed terms, a filed application, and a division the registrar accepts as just and equitable
Binding financial agreement	Yes	None	Independent legal advice for both parties and a signed statement from each lawyer

You should also note that transfers of property between separating parties are generally exempt from NSW transfer duty whether they are made under a court order or under a binding financial agreement (s 68(1) and (1A) Duties Act 1997 (NSW)). The duty exemption is not a reason to choose one route over the other.

Which option suits you is a question our family lawyers work through with you, once we understand what is actually in your asset pool.

Common Mistakes During Property Settlement

There are some common mistakes that people make during a property settlement. These can greatly affect your financial future but are easily avoidable with advice from our family lawyers:

Relying on an informal agreement: It is not enforceable and it protects nobody.
Leaving superannuation out: Often the largest asset in the pool.
Missing the time limit: Twelve months from a divorce order, or two years from the end of a de facto relationship.
Agreeing before the pool is valued: You cannot divide property and finances fairly when you do not know what they are worth.
Incomplete disclosure: It risks costs orders during the matter and the settlement being reopened afterwards.
A poorly drafted binding financial agreement: One that does not meet the statutory requirements may not be binding at all.
Ignoring tax and duty: How and when assets are transferred has consequences that are easy to avoid and expensive to fix.

The Property Settlement Process

Every matter is different, but most property settlements follow the same broad sequence. Here is what the process looks like and how VRT Lawyers can help you at each stage.

Initial consultation and strategy: We take a full picture of your circumstances, confirm which time limit applies to you, identify the likely issues, and set out your realistic options.
Building the balance sheet: We work with you to identify every asset, liability and superannuation interest on both sides, and produce a preliminary balance sheet as the basis for negotiation.
Financial disclosure: We prepare and exchange your disclosure and review your former partner's, identifying gaps and following them up. Where disclosure is refused, we apply to compel it.
Valuations: Where the pool includes a business, real property, a trust interest or a defined benefit superannuation interest, we engage appropriately qualified experts and test their assumptions.
Negotiation: We put a considered proposal to the other side and negotiate on your behalf, aiming to resolve the matter without the cost and delay of a hearing.
Mediation or dispute resolution: Where direct negotiation stalls, we prepare you for mediation and represent you through it.
Formalising the agreement: Once terms are agreed, we draft your consent orders or binding financial agreement, settle superannuation wording with the fund trustee, and file the application.
Court proceedings where required: If the matter cannot be resolved, we file and run your case in the Federal Circuit and Family Court, while continuing to pursue settlement at every opportunity.
Implementation: We oversee the transfer of property, the implementation of superannuation splits, and enforcement where the other side does not comply.

A negotiated property settlement formalised by consent orders commonly takes several months from start to approval. A contested matter that proceeds to a final hearing takes considerably longer, often more than a year. The largest single factor is how quickly both people provide their financial disclosure.

Book a consultation to discuss your property settlement with our family lawyers.

Why Choose VRT Lawyers for Your Property Settlement

Dividing an asset pool that includes a business, a trust or significant superannuation calls for more than general family law knowledge. Our team combines four decades of practice with specialist accreditation.

Daniella Ruggero, Principal and Accredited Family Law Specialist at VRT Lawyers in her Sydney office.

Tyson Beckman, associate at VRT Lawyers, working at his desk

Tayla McPhee, solicitor at VRT Lawyers, speaking with a colleague at her desk

Genesis Burbano, solicitor at VRT Lawyers, taking notes

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FAQs

Is property always split 50/50 in Australia?

No. There is no automatic 50/50 rule and no fixed formula. The court identifies the asset pool, assesses each person's financial and non-financial contributions, considers each person's current and future circumstances, and then checks that the result is just and equitable. An equal division is sometimes the outcome, but it is never the starting point.

Is superannuation included in a property settlement?

Yes. Superannuation is treated as property under the Family Law Act 1975 (Cth) and forms part of the asset pool for both married and de facto couples. It can be divided by a splitting order, or offset against other assets so one person keeps their superannuation and the other receives more of the remaining property.

What affects how long a property settlement takes?

The biggest factor is how quickly both people provide full financial disclosure. Matters also take longer where a business or trust needs valuing, where the parties disagree about what an asset is worth, or where one person is uncooperative. A straightforward negotiated settlement formalised by consent orders moves considerably faster than a contested matter that proceeds to a hearing.

Do I need a lawyer for a property settlement?

You are not legally required to have one for consent orders, but dividing property informally leaves you exposed to a claim years later. For a binding financial agreement, the law requires both parties to obtain independent legal advice before signing. If legal costs are a concern, VRT Lawyers offers flexible funding options through JustFund for eligible clients.

What is the difference between a property settlement and a divorce?

A divorce order legally ends your marriage. It does not divide any of your property. A property settlement is the separate process of dividing your assets, superannuation and debts. You can start your property settlement as soon as you separate, and de facto couples go through a property settlement without any divorce at all.

What happens if my former partner refuses to participate?

You can apply to the Federal Circuit and Family Court of Australia. The court can compel your former partner to provide financial disclosure and can make orders dividing property even where one person will not engage. Refusing to participate delays a settlement. It does not prevent one.

Can a property settlement be changed after it is finalised?

Rarely. Once consent orders are approved or a binding financial agreement is properly signed, the settlement is difficult to reopen. A court will only set aside property orders in limited circumstances under s 79A of the Family Law Act 1975 (Cth). These include fraud, duress, a failure to disclose assets, false evidence, or where the orders can no longer be carried out. A binding financial agreement can also be set aside only on limited grounds, such as fraud or unconscionable conduct (s 90K). This is why getting the agreement right the first time matters.

What happens if I have missed the time limit?

You have two options. If your former partner consents, an application can still be made without the court's permission. Otherwise you must ask the court for leave to apply out of time, and the court will only grant it if hardship would be caused to you or a child if permission were refused. Leave is granted only in limited circumstances and is never guaranteed, so act quickly.

Does my former partner's new relationship affect the property settlement?

It can. Where either person is living with a new partner, the financial circumstances of that cohabitation are an express consideration when the court assesses current and future circumstances (s 79(5)(q); s 90SM(5)(q)). It does not mean a new relationship reduces someone's entitlement automatically, but the financial support available from it can be relevant.

Are family trusts protected from a property settlement?

Not automatically. The court looks at who actually controls the trust rather than who legally owns the assets. Where one person effectively controls a discretionary family trust, its assets are commonly treated as part of the divisible pool. Where a person receives distributions but has no control, the trust may instead be treated as a financial resource, which the court must still take into account.

Who gets the house in a divorce with children?

There is no automatic rule giving the family home to the parent the children live with. The care of children under 18, including their housing needs, is one consideration among many. It is weighed against contributions, earning capacity and the size of the overall pool. The practical question is often whether the parent who wants to keep the home can refinance the mortgage on their own.

What is the penalty for hiding assets in a property settlement?

Both parties have an ongoing legal duty to disclose their full financial position. Where a person fails to do so, the court can take it into account when dividing the property, make costs orders, compel disclosure, impose sanctions or dismiss part of their case. If undisclosed assets emerge after a settlement is finalised, the orders can be set aside entirely.

Is inherited property part of a divorce settlement?

An inheritance is not automatically excluded. How it is treated depends on when it was received and what happened to it. An inheritance received early in a long relationship and used for the family is usually treated as a contribution absorbed into the joint pool. One received shortly before or after separation and kept separate is more likely to be treated differently.

What happens to the family pet during property settlement?

Companion animals are dealt with under their own provisions (s 79(6) and (7); s 90SM(6) and (7)). There is no shared custody of animals in Australia. A court can only order that one person keeps the animal, that it be transferred to someone who consents to take it, or that it be sold. In deciding, the court considers how the animal was acquired, who owns or has possession of it, who has cared for and paid for it, any family violence, any cruelty or threatened cruelty towards the animal, any attachment by a party or a child, and each person's demonstrated ability to care for it going forward.

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