Introduction
Section 79 of the Family Law Act 1975 gives courts the power to alter the interests of married couples in their property. This guide explains the four-step process courts use when determining property settlement in Australia.
The Four-Step Process
Step 1: Identify and Value the Asset Pool
The first step is to identify all assets, liabilities, and superannuation of both parties. Everything goes "into the pool" regardless of whose name it's in.
Assets include:
Liabilities include:
Step 2: Assess Contributions
Courts consider all contributions made by both parties throughout the relationship:
Financial contributions:
Non-financial contributions:
Homemaker and parent contributions:
Step 3: Consider Future Needs (Section 75(2) Factors)
The court then considers whether an adjustment should be made based on future circumstances:
- Age and health of each party
Step 4: Just and Equitable
Finally, the court steps back and asks: "Is this outcome just and equitable in all the circumstances?"
This is a cross-check. The court may adjust the proposed split if the overall outcome seems unfair.
Common Misconceptions
"Everything is split 50/50"
False. There is no automatic 50/50 split in Australia. The split depends on contributions and future needs.
"What I brought in is mine"
Partially true. Initial contributions are considered, but the longer the relationship, the less weight they typically carry.
"Superannuation is separate"
False. Super is part of the property pool and can be split.
Time Limits
- Married couples: 12 months from divorce order
After these deadlines, you need the court's permission to apply.
Next Steps
Use our Property Predictor to estimate how your assets might be divided.