Section 79 — Family Law Act 1975
Property Settlement in Australia
How assets, property, and superannuation are divided after separation in Australia. Understand the four-step court process, time limits, and the difference between consent orders and Binding Financial Agreements.
4-Step
Court Process (s.79)
12 Months
Time Limit (Married)
2 Years
Time Limit (De Facto)
Married couples have 12 months from the date their divorce is finalised to apply for property orders. De facto couples have 2 years from separation. After these periods, you need court permission to apply — which is not guaranteed. If you are approaching your deadline, get legal advice immediately.
How Property Settlement Works in Australia
Property settlement in Australia is governed by Part VIII of the Family Law Act 1975 (Cth) for married couples, and Part VIIIAB for de facto couples. The core principle is that property is divided based on each party's contributions and future needs — not legal ownership, and not an automatic 50/50 split.
Courts use a four-step process established in case law (and set out in s.79 for married couples). The process applies whether the court is making orders at trial, or approving consent orders submitted by the parties. Even if you reach agreement privately, understanding this process helps you assess whether your proposed agreement is likely to be approved.
Property settlement covers all property — including superannuation, business interests, and assets held in trusts — regardless of whose name they are registered in. Both parties have an obligation of full and frank financial disclosure throughout the process.
The Section 79 Four-Step Process
Courts apply this methodology to every property settlement — whether by consent or at trial. Understanding each step helps you assess your position and make realistic expectations.
Step 1Step 1 — Identify and Value All Assets, Liabilities, and Superannuation
The court identifies and values ALL property of both parties at the date of the hearing (not at the date of separation). This includes everything regardless of whose name it is in. Both parties must provide full and frank disclosure.
Real property (family home, investment properties, overseas)Motor vehicles, boats, caravans, motorcyclesBank and savings accounts (all accounts)Shares, managed funds, ETFs, bondsBusiness interests, goodwill, and IPSuperannuation (all funds — use Family Law Value)Cryptocurrency and digital assetsJewellery, art, furniture, collectiblesMoney owed to you (loans, tax refunds)Trust interests (discretionary and fixed)All debts and liabilities
Step 2Step 2 — Assess Each Party's Contributions
The court assesses each party's financial and non-financial contributions to the property pool over the entire relationship — from before it started through to separation. Initial contributions (what you brought in) are given significant weight for shorter relationships.
Initial contributions — assets brought to the relationshipDirect financial contributions — income, wages, savingsIndirect financial contributions — inheritances received, family loansNon-financial contributions — renovating the home, running a businessHomemaker contributions — running the householdParent contributions — primary care of childrenPost-separation contributions — managing assets or taking on liabilities
Step 3Step 3 — Future Needs Adjustment (Section 75(2) Factors)
After assessing contributions, the court adjusts the split based on factors under s.75(2) of the Family Law Act that affect each party's future financial position. These factors can significantly change a contributions-based outcome.
Age and state of health of each partyIncome, earning capacity, and employment prospectsCare and control of children under 18Financial resources available to each partyLength of the marriage or relationshipStandard of living enjoyed during the relationshipChild support payments made or receivedAny order made or proposed to be made under the Family Law Act
Step 4Step 4 — Just and Equitable Check
Even if contributions and future needs calculations point to a specific outcome, the court must be satisfied that making any order is "just and equitable" — i.e., fair in all the circumstances. In rare cases where very short relationships with no children are involved, it may not be just and equitable to make any order at all.
Overall fairness assessment of the proposed divisionClean break principle — minimising ongoing financial ties where possiblePractical implementation — can the orders actually be carried out?Tax consequences of proposed transfersWhether it is just and equitable to make any order at all
Four Ways to Reach a Property Settlement
Private Agreement (Informal)Not Binding
You and your former partner agree informally. However, an informal agreement is not legally binding and either party can change their mind. Generally not recommended for significant property.
Typical cost: LowBinding Financial Agreement (BFA)Legally Binding
A BFA (also called a "pre-nup" or "financial agreement") is a written agreement between the parties. It is binding if both parties receive independent legal advice and the solicitors sign certificates of advice. It does not require court approval.
Typical cost: Medium ($3K–$10K typically)Consent OrdersLegally Binding
The parties agree on terms, draft orders, and apply to the FCFCA for approval. The court reviews the proposed orders to ensure they are just and equitable. Once approved, the orders are binding and enforceable. This is the most common method.
Typical cost: Medium ($200–$500 filing fee + legal costs)Litigated Court OrdersLegally Binding
If parties cannot agree, a Judge makes property orders at trial. Both parties present evidence of contributions and future needs. The Judge applies the four-step process. This is the most expensive and time-consuming option.
Typical cost: High ($30,000–$200,000+ in legal costs)Time Limits — Do Not Miss These Deadlines
Married Couples
12 Months
From the date the divorce order takes effect — not from separation.
After this: court permission required, which may not be granted.De Facto Couples
2 Years
From the date of separation — no divorce needed.
After this: court permission required, which may not be granted.Common Mistakes to Avoid
- Waiting too long — missing the 12-month (married) or 2-year (de facto) time limit to file
- Accepting informal agreements without consent orders or a BFA — leaving you unprotected
- Not disclosing all assets, particularly super, crypto, or business interests
- Signing a BFA without getting independent legal advice — may invalidate the agreement
- Treating property settlement as separate from parenting — they are often negotiated together
- Assuming property is only what is in your name — all property of both parties is included
- Failing to update valuations — using old property or super values can significantly distort the outcome
- Not considering tax consequences of proposed transfers (CGT on investment properties, stamp duty)
Frequently Asked Questions
Calculate Your Property Split
Use Splitifi's free Property Settlement Predictor to estimate your entitlements based on the Section 79 methodology.
real court outcomes analysed
outcome prediction models built
Related Pages
Financial Disclosure
Superannuation Splitting
De Facto Separation
Self-Represented Guide
Australian Guides
50/50 is Not the Default
A common misconception: Australian law has no 50/50 presumption. Courts apply the four-step process to the specific facts of your relationship. Your contributions, earning capacity difference, and who has primary care of children all affect the outcome.
Understand Your Property Entitlements
Splitifi's Property Settlement Predictor applies the Section 79 four-step methodology to your specific situation so you can make informed decisions about your future.