Do you actually have to go to court?
Most separating couples do not go to trial. The Federal Circuit and Family Court of Australia encourages resolution by agreement, and in practice the large majority of property matters are resolved without a judge ever making a determination. That does not mean court is never involved. It means that when the parties reach an agreement, they can formalise it as consent orders without contested proceedings, by filing an Application for Consent Orders and having a registrar check that the proposed division is just and equitable. The orders are then made by the court and become enforceable in the same way as orders made after a trial.
The alternative to consent orders is a binding financial agreement, which is a private contract made directly between the parties under the Family Law Act 1975 (Cth). A binding financial agreement does not need court approval, but it has strict formal requirements and is more readily set aside if something goes wrong. Consent orders are generally the preferred route for most couples.
A contested hearing before a judge, with evidence, cross-examination and a judgement, is the outcome when agreement cannot be reached. It is costly, slow and uncertain. It is also, statistically, uncommon. The system is designed to exhaust every other option first.
There is no automatic 50/50 split
One of the most persistent misconceptions about property settlement is that the law defaults to an equal division. It does not. Under the Family Law Act 1975 (Cth), the court has a broad discretion to make orders altering the parties’ property interests, and the outcome is determined by a structured consideration of the particular circumstances of the relationship, not by a mathematical formula.
For married couples, this power sits in section 79 of the Act. For de facto couples, the equivalent provision is section 90SM. Amendments that commenced on 10 June 2025 codified the decision-making framework into the legislation itself. In plain terms, the process works like this.
First, the court identifies what property exists. This means all assets and liabilities held by either party, or jointly: real estate, superannuation, businesses, savings, investments, vehicles and debts. Superannuation is treated under its own part of the Act, and a specific splitting order is required to divide it.
Second, the court assesses contributions. This covers financial contributions, such as deposits, mortgage payments, income and inheritances, and non-financial ones, such as caring for children, homemaking and building a business together. Neither type of contribution is more important than the other as a matter of principle. The weight given to each depends on the facts of the relationship.
Third, the court considers current and future circumstances. This includes factors such as the age and health of each party, income and earning capacity, the care of children under 18, the effect the relationship had on a party’s career, and the impact of any family violence. These adjustments reflect that an equal split of assets can produce an unequal outcome if one party leaves the relationship in a significantly worse position to support themselves.
Finally, the court is satisfied that the outcome is just and equitable overall. The division must be fair in all the circumstances, not merely the product of applying a formula.
In most cases the outcome falls within a range, not at a single point. That range depends heavily on the length of the relationship, the size and composition of the asset pool, and what each person contributed and gave up. A split anywhere from 55/45 to 70/30, or beyond, is possible depending on the facts.
“The question the law asks is not what is half of what we own. It is what division is fair, given everything each person brought to the relationship and everything they need going forward.” |
De facto couples are covered too
If you were not married, you are not outside the family law system. Section 4AA of the Family Law Act 1975 (Cth) defines a de facto relationship as one where two people who are not married to each other live together as a couple on a genuine domestic basis. Same-sex couples are included.
Before a court can make property orders for a de facto couple under section 90SM, section 90SB requires that at least one of these conditions is met: the relationship lasted for at least two years, or there is a child of the relationship, or the relationship is registered under a prescribed law, or the applicant made substantial contributions and a failure to make an order would result in serious injustice. This is the jurisdictional threshold, and it matters because a very short de facto relationship with no children may not cross it.
If you do qualify, the property settlement process is substantively identical to that for a married couple. The same structured consideration of contributions and future circumstances applies. The main difference lies in the time limit for applying, which is discussed below.
The time limits you cannot afford to miss
This is the part of property settlement that catches people most off guard. The Family Law Act 1975 (Cth) sets hard deadlines for applying to a court for property orders, and missing them can bar your claim entirely without the court’s permission to proceed late.
Under section 44(3), a party to a marriage must apply for property or maintenance orders within 12 months of the date a divorce order takes effect. The clock runs from when the divorce takes effect, not from when you separate. Because divorce in Australia requires a 12-month separation period before you can even apply, and there is then a short period before the divorce order takes effect, the 12-month window does not begin on the day you part ways. But it does arrive, and when it does, it is firm.
Under section 44(5), a party to a de facto relationship must apply within 2 years of the end of the de facto relationship. The end of the relationship is generally the date you separated.
In both cases, the court can grant leave to proceed out of time under section 44(6), but only where hardship would otherwise result. This is not a rubber stamp, and the outcome of a leave application is never certain. The safe position is to formalise your property settlement, whether by consent orders or otherwise, well within the applicable period.
Consent orders, financial agreements, and when you really need a lawyer
If you and your former partner have agreed on how to divide things, you have two main ways to make that agreement legally binding.
Consent orders are filed with the court using an Application for Consent Orders. A registrar reviews the proposed division to check that it is just and equitable, and if satisfied, the orders are made and become enforceable as court orders. Consent orders are the preferred route for most couples because they are relatively straightforward, the court provides an independent check on the fairness of the deal, and in Queensland a transfer of property between the parties made under them is generally exempt from transfer duty.
Binding financial agreements under the Family Law Act 1975 (Cth) are private contracts. They do not require court approval, which makes them more flexible in some respects, but they have strict formal requirements: both parties must receive independent legal advice before signing, and each lawyer must sign a certificate confirming that advice was given. An agreement that does not comply with those requirements, or that was signed in circumstances suggesting pressure or inequality, can be set aside by a court.
For straightforward matters where both parties broadly agree, consent orders with a lawyer checking the documents can be a cost-effective way to resolve things. But legal advice is valuable even when you agree. The court does not approve consent orders blindly: an arrangement that is substantially unfair to one party may be rejected, which means the parties need to understand what a fair range actually looks like before they lock anything in. A lawyer can also identify issues that are not obvious, such as a superannuation interest being overlooked, a contribution that has not been properly valued, or a time limit that is closer than expected.
Where the relationship is complex, the asset pool is significant, there has been family violence, or there are business interests or trusts involved, independent legal advice is not optional in any meaningful sense. The discretionary nature of property settlement means the range of possible outcomes is wide, and understanding where your facts sit in that range is the foundation of any sound negotiation.
What this means for you
If you separated recently, do not wait
The time limits under section 44 run whether or not you are aware of them. If you are married, the 12-month clock starts when the divorce order takes effect. If you were in a de facto relationship, the two-year period runs from separation. Getting advice early gives you the maximum time to negotiate a good outcome rather than being pressured by an approaching deadline.
If you have agreed on a split, make it binding
An informal agreement, even one recorded in emails or a text conversation, is not enforceable under the Family Law Act 1975 (Cth) in the way a court order is. If either party later changes their mind, or something is missed, you are back to square one. Consent orders are the most reliable way to convert an agreement into something that protects both of you.
If you are in a de facto relationship, check the threshold
Before assuming you have the same rights as a married couple, check whether your relationship meets the section 90SB threshold. Duration, whether there are children, and whether the relationship is registered all matter. If you are unsure, a short conversation with a lawyer will clarify your position quickly.
If you think the split should be 50/50, consider why
Equal division is sometimes the right outcome and often it is not. If one party took years out of the workforce to raise children, or brought significantly more into the relationship at the start, or has been left with substantially lower earning capacity, the legally sound outcome will reflect those facts. Understanding this before you negotiate gives you a more realistic picture of what a fair agreement looks like. Our family law team can give you a frank assessment of where your situation sits.
Family law and property settlement Whether you have just separated, have reached an agreement and need it formalised, or are facing a more complex dispute, our family law team on the Gold Coast can advise you on where you stand and the most practical way forward. |
Sources and currency
The legal points in this article come from the Family Law Act 1975 (Cth), in the compilation in force from 10 June 2025, as at 12 July 2026:
- Section 79 (married couples) and section 90SM (de facto couples): the court’s power to alter property interests.
- Section 4AA defines a de facto relationship, and section 90SB sets the jurisdictional threshold for de facto property orders (a relationship of at least two years, a child of the relationship, a registered relationship, or substantial contributions where a failure to make an order would cause serious injustice).
- Section 44 sets the time limits for applying (s 44(3): within 12 months of a divorce order taking effect; s 44(5): within 2 years of the end of a de facto relationship; s 44(6): leave to apply out of time).
Commonwealth legislation is published at legislation.gov.au and is periodically amended; the current in-force version should always be checked.
This article is general information only and not legal advice. It reflects the Family Law Act 1975 (Cth) as amended, including amendments that commenced on 10 June 2025, and applies to Commonwealth family law matters. The rules described operate differently depending on the facts of each relationship, and outcomes in family law proceedings are always discretionary. Contact Fraser Lawyers for advice specific to your situation.
If you would like to discuss your matter, you can book a consultation or call (07) 5554 6116.
