The same laws about property apply whether or not you were married or in a same sex relationship. You can start negotiations about property as soon as the relationship has broken down.

In a same sex relationship, you must commence property or maintenance proceedings within two years of your separation.

After ten years of marriage and two children John and Kate decided to separate. John had provided the funds to buy their first house and had spent an enormous amount of time improving the family home. He faced a dilemma, he didn’t want to leave the family home but if he stayed he was afraid he and Kate would end up having a major fight. John was afraid fighting would scare the children or that Kate might decide he shouldn’t see the children anymore .

One of the most important, and perhaps the most difficult, issues facing couples who separate is the question of ‘who gets what?’ The Family Law Property Settlements Act provides for property settlements between couples who are, or have been, married and also couples in a de facto relationship (including same sex couples). Most property settlements are dealt with by the Federal Circuit Court or the Family Court.

[Case: John and Kate’s Separation]

Strict time limits apply to commencing property settlement proceedings in a Court. You must apply for a Court Order within two years from the date your de facto relationship ended or within one year from when your divorce order became final. It is important that you seek proper legal advice as soon as possible (including while contemplating separation).

The lawyers at Mathews Family Law & Mediation Specialists Melbourne have extensive experience negotiating property settlements for couples who have a substantial asset pool, such as a major property/share portfolio or a family business. We understand both the emotional and the commercial implications of splitting assets. We are committed to ensuring a fair settlement is achieved as quickly as possible, we aim to reduce the time taken and therefore the cost to you.

Mathews Family Law is a law firm based in Melbourne. Please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

How Can I Formalise My Property Settlement?

There are two primary ways to formalise a property settlement in Australia:

1. Consent Orders
2. Binding Financial Agreements (BFAs)

The most appropriate option depends on your individual circumstances and legal objectives. Our Accredited Family Law Specialists can advise which approach is best suited to your situation.

Consent Orders

If you and your former partner have reached an agreement, you can jointly apply to the Federal Circuit and Family Court of Australia for Consent Orders.

Consent Orders:

• Record the terms of your agreement
• Are reviewed by the Court
• Become legally binding once approved
• Have the same legal effect as orders made by a Judge after a hearing

Before making Consent Orders, the Court must be satisfied that the proposed settlement is just and equitable.

Although it is possible to prepare the documents yourself, they are technical legal documents. Obtaining advice from an Accredited Family Law Specialist helps ensure your agreement accurately reflects your intentions and avoids costly mistakes.

Binding Financial Agreements (BFAs)

A Binding Financial Agreement (BFA) is a private legal agreement between parties that can deal with financial matters before, during or after a relationship.

A BFA may cover:

• Division of property
• Financial resources
• Superannuation (where applicable)
• Spousal maintenance, including permanently resolving future maintenance claims where appropriate

Unlike Consent Orders, a BFA is not approved by the Court. Instead, strict legal requirements must be satisfied before it becomes legally binding.

Importantly, each party must receive independent legal advice before signing the agreement. Failure to comply with these legal requirements may result in the agreement being challenged or set aside.

Consent Orders or a Binding Financial Agreement?

Both options provide legal certainty, but they serve different purposes.

Consent Orders may be appropriate where:

• Both parties have reached agreement.
• Court approval is desirable.
• The proposed settlement is just and equitable.

Binding Financial Agreements may be appropriate where:

• Greater flexibility is required.
• Parties wish to keep their financial arrangements private.
• Spousal maintenance rights are intended to be permanently resolved.
• The agreement is made before, during or after a relationship.

Our Accredited Family Law Specialists can advise which option best meets your circumstances.

Important Time Limits

Many people mistakenly believe they must wait until they are divorced before dealing with property settlement.

This is not the case.

Property settlement and divorce are separate legal processes, and financial matters can often be resolved before a divorce is final.

However, strict time limits apply:

• Married couples generally have 12 months after their divorce becomes final to commence Court proceedings for property settlement.
• De facto couples generally have two years from the date of separation to commence proceedings.

If these time limits expire, you may require the Court’s permission to proceed, which can be difficult, costly and is not automatically granted.

Obtaining legal advice early helps protect your rights.

Speak with an Accredited Family Law Specialist

Whether you have reached an agreement or are still negotiating with your former partner, obtaining specialist legal advice before finalising your property settlement can help protect your future.

At Mathews Family Law & Mediation Specialists, our Accredited Family Law Specialists provide clear, practical advice tailored to your individual circumstances. We can assist with Consent Orders, Binding Financial Agreements, negotiated settlements and Court proceedings where necessary.

Contact us today to arrange your complimentary 15-minute telephone consultation. We’ll explain your options, answer your questions and help you achieve a legally binding property settlement with confidence.

About Vanessa Mathews — Accredited Family Law Specialist

Vanessa Mathews
Principal | Accredited Family Law Specialist | Accredited Family Dispute Resolution Practitioner | Mediator

This page was prepared and reviewed by Vanessa Mathews, Principal of Mathews Family Law & Mediation Specialists. Vanessa practises exclusively in family law and assists clients throughout Australia with separation, divorce, parenting disputes, property settlements, financial agreements and other complex family law matters.

Helping families resolve conflict through specialist legal expertise and constructive dispute resolution.

Last reviewed: 24 July 2026

Disclaimer: This page provides general information only and does not constitute legal advice. Every family law matter is different and you should obtain advice tailored to your circumstances.

There are a number of issues to be considered for a property settlement, some of which you may not even have thought are relevant, such as your and your former partner’s superannuation entitlements.

Further issues to be considered may include:

– Assets and liabilities of each party

– How much did each party contribute financially

– Domestic duties performed by each party

–  Who looked after the children

– Superannuation

– Any gifts received and

– Inheritances.

When a couple divorces (or de facto or same-sex couples terminate their relationship), one of the major decisions to make is “who gets what”.  A pre-nuptial agreement (often called a ‘pre-nup’) may help make this division easier.  If a couple can decide between them and come up with their own agreement, long court battles can be avoided. If not, the courts have their own way of dealing with property division. In Australia, the courts place all property into one pool and then divide it “equitably” or fairly.  Everything is included and considered joint property by the courts.

The law governing property division(link to “Property Division FAQs”) between spouses or de facto couples is Part VIII of the Family Law Act, 1975 (FLA). The law provides guidelines for the courts to use when dividing property. There are a number of factors the court will consider and which couples should know about.  Below is a list of some considerations.

Think about the children

Before even entering into the fight, divorcing couples should consider their children when dividing up property. It might be more “fair” to sell the marital home, but parents (if they can afford to) should also consider the impact of this change on the children. If parents are going to share parenting time, they should think about what children will need in each home and also divide accordingly. If one parent is moving to a smaller home, he or she might not have space for so much furniture, so why demand it just for the sake of being fair. Both parents should consider the physical and emotional needs of their children, not just what they themselves believe they are entitled to receive. 

Depreciation of ownership rights

Over time, the contribution of the person who brought the property decreases and the contribution of the other partner increases. For example, one person may have purchased the house prior to the marriage, but the other partner paid most of the mortgage on it for the next 20 years.  The investment in the house may be equal by the time the couple splits up and the court will consider this relevant in making an equitable distribution.

The value of the property when it was acquired.

The courts will consider the value of the property when it was brought into the marriage as well as the length of the marriage. There is a difference between a house that was worth $100,000 and one worth $2 million. If a couple was married for only a short period and during that time the marital home tripled in value, how much is the spouse who purchased it prior to the marriage entitled to?  How much is the other spouse, who paid next to nothing in terms of mortgage and maintenance, entitled to?

Non-financial contribution

The courts in Australia today recognize that in many marriages today, one partner may earn a high salary while the other contributes to the marriage in a non-financial capacity. This role has a value that also needs to be measured for property purposes. Many couples decide that one partner will stay home to care for the house and children. This enables the other partner to obtain an education, gain professional experience and earn a higher wage. The stay-at-home parent is entitled to financial compensation for his or her job at home and for allowing the other spouse professional development.

The parent who stays at home makes other large non-financial contributions to the home. By being at home, the family saves thousands of dollars on child care and possibly cleaners and cooks. Finally, the at-home spouse may undertake do-it-yourself jobs, like painting, also worth a good deal of money to the family, but without any actual monetary compensation.  Imagine a spouse who repaints the inside of the house.  Not only has the family saved on the expense of paying an outside contractor but the value of the home has also increased.

Use and maintenance of the property

The court will consider not only the worth of the couple’s property but also how it is used. In one family, for example, the father stays home to care for the children. He is responsible for all household work – cooking, cleaning, gardening, and paying bills. The mother, in turn, works long hours to provide a good income and financial stability.  No doubt the mother “earned” her share of the house, but so did the father. The court might ask who actually needs the home more. In this case, the court may consider equitable distribution to mean that the father keeps the house and the mother receives other property.

Future needs

Section 75(2) of the FLA lays out the factors a court uses to determine the “future needs” of each spouse. The court considers age, health, professional training and ability and property and financial resources, among other factors.  Based on this analysis, the court may decide that a particular spouse is entitled to more of the marital property, to compensate for that person’s weaker ability to earn a living.

Family law property matters are complex, and can benefit from the guidance of specialist family law attorneys. Contact Mathews Family Law to discuss your family law property settlement today.

Marital property is all assets and liabilities acquired during the course of the marriage.   Assets might include your home, cars, furniture, shares in a company, rental income and savings.   Liabilities can include any debt, such as mortgages or other loans and leases.

Generally, anything acquired before the marriage is not considered marital property.   However, the court might determine that certain types of property are marital.  The longer a couple is married, the more likely a court will consider property – even property acquired by one partner before the marriage – to be marital property.  For example, perhaps you purchased your home before getting married.  Fifteen years later your spouse, who had a higher income, contributed equally to the mortgage payments and the house renovations, may now be entitled to some share of the value of the house.

Speak with a specialist family law attorney at Mathews Family Law today to discuss your property matter.

Inheritance – What Happens to Them In Divorce Property Settlement

An article was written for accountants and financial advisors by Vanessa Mathews of Mathews Family Law & Mediation Specialists.

Your client has the good fortune to receive a ‘windfall’, such as an inheritance or a lotto. Your client and their partner separate.

Will the windfall be included in the property settlement asset pool?

Your client will likely answer ‘No Way’!

From the court’s perspective, windfalls are not a special category of contributions and they must be:

1. Included in the asset pool.
2. Considered in the same manner as, and holistically with, all of the other contributions made during the relationship – financial, non-financial, homemaker and parenting.

The timing of the windfall will however be relevant as to how the windfall is ‘shared’:

• A windfall received early in the relationship is likely to be treated equally.
• A windfall received shortly before separation is less likely to be treated equally.
• A windfall received after separation is even less likely to be treated equally.

The short answer is that the windfall is unlikely to be retained in full by your client.

I’ll leave it to you to break the bad news to them.

Next Steps Before a Divorce Property Settlement

You and/or your client may benefit from discussing the circumstances of the inheritance or other windfall and divorce property settlement before taking any action such as distributing or disposing of the asset in a manner that may adversely impact your client.

Vanessa Mathews is a family law specialist solicitor with the expertise and experience to advise you about your family law property settlement issues.

Please call Mathews Family Law & Mediation Specialists on 03 9804 7991 or email [email protected] to speak with Vanessa Mathews or one of our other family law attorneys regarding any family law property matters.

Resources

Mathews Family Law – Dividing the Property: https://mathewsfamilylaw.com.au/divorce/divorce-videos/dividing-the-property-in-victoria/

Family Court of Australia: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/home

Federal Circuit Court of Australia: http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/home

Property divisions are based on the contributions made by each party to the relationship.

In a short relationship, each party will tend to leave the relationship with what they brought to the relationship.

In a long relationship, the ongoing contributions made throughout the relationship are seen to decrease the significance any financial contributions made at the beginning of the relationship by an individual party. The continuing financial and non-financial contributions made by both parties to the relationship tend to erode the ability for any particular asset to continue being owned exclusively by one party or the other.

If an asset has been purchased post separation using assets of the marriage, then there is a strong basis for claiming that both parties have contributed to the asset.

However, in a situation where one spouse acquires property several years after separation from income generated post separation, then it would be difficult to substantiate a claim.

Where a business asset is sold after separation and the asset was built up during the course of the relationship then it can be possible to claim the proceeds as an asset of the relationship.

If a claim is brought to the Court for determination, it is important to remember that the Court looks at the financial position of the parties at the time of hearing. This can be several years after separation.

The Court will also consider other issues such as future needs, income earning capacity and maintenance concerns when determining a property settlement.

In addition to the assets and liabilities of the relationship, financial and non-financial contributions, other considerations such as future needs, income earning capacity as well as maintenance concerns will be taken into account when determining a property settlement.