Who Gets What? Understanding Property Division in Divorce

When a marriage or de facto relationship ends, one of the biggest concerns for separating couples is how to divide their property. Whether it’s the family home, savings, superannuation, or even household items, deciding who gets what can be complex and emotionally charged. Understanding how property division works in Australia can help you prepare and make informed choices.

Many people assume everything will be split 50/50, but that’s not always the case. The law looks at a range of factors to decide what’s fair. It’s important to know your rights and seek legal advice early. This is where experienced family lawyers can offer guidance, help protect your interests, and assist in reaching a fair settlement.

What is Property Division?

Property division, also called a property settlement, is the legal process of dividing assets and debts after a separation. This includes everything you and your former partner own and owe, regardless of whose name it is in. It can involve:

The family home
Investment properties
Bank accounts and savings
Superannuation
Vehicles
Businesses
Shares or other investments
Personal belongings
Debts, including mortgages, credit cards, and loans

Property settlements can be handled by agreement between both parties or through a court order if no agreement is reached.

Do You Have to Go to Court?

You don’t have to go to court to finalise property division. In fact, most separating couples resolve property matters through negotiation or mediation. This approach is often quicker, less stressful, and more affordable.

If both parties agree on how to divide property, you can:

Create a binding financial agreement (BFA)
Apply for consent orders from the Family Court

Both options are legally binding. Family lawyers can help you prepare and review documents to ensure your agreement is fair and enforceable.

If no agreement can be reached, either person can apply to the Federal Circuit and Family Court of Australia for a property settlement order. This means a judge will decide who gets what based on the facts of the case.

Time Limits for Property Settlements

There are strict time limits for starting property proceedings after separation. These are:

12 months after a divorce becomes final (for married couples)
2 years after the date of separation (for de facto couples)

It’s important to act within these timeframes. If you miss the deadline, you may need special permission from the court to start your case.

How Does the Court Decide?

When dividing property, the court follows a four-step process under the Family Law Act 1975:

Step 1: Identify and value the property pool

The first step is to list all assets and debts, including those owned jointly, individually, or through a company or trust. Each item is given a current market value, not what it was worth when the relationship started or ended.

Step 2: Assess contributions

The court then looks at what each party contributed to the relationship. Contributions can be:

Financial (e.g. wages, property bought before or during the relationship)
Non-financial (e.g. homemaking, caring for children)
Indirect (e.g. helping with renovations, supporting a partner’s career)

Both partners’ contributions are considered equally important, especially in long-term relationships.

Step 3: Consider future needs

The court examines whether one person may need more financial support than the other moving forward. Factors include:

Age and health
Earning capacity
Care of children
Financial resources

If one party is less able to support themselves, they may be awarded a greater share of the property.

Step 4: Make a fair and just decision

Finally, the court considers whether the proposed division is fair and reasonable in all the circumstances. This step ensures the outcome is balanced, not just based on numbers.

What About Superannuation?

Superannuation is treated as property under the law, even though it’s held in a fund. It can be split between both parties through a formal agreement or court order. The split doesn’t mean cashing out super—it just reallocates the balance between accounts.

This is an area where legal advice is especially important. Superannuation laws are complex, and splitting super has long-term consequences for retirement planning.

Tips for a Smoother Property Settlement

Get advice early: Talk to a family lawyer as soon as possible. They can help you understand your entitlements and avoid costly mistakes.
Be honest and transparent: Full financial disclosure is required by law. Hiding assets or failing to declare debts can damage your case.
Try to stay calm: Emotions can run high, but staying focused on fair outcomes helps keep the process on track.
Think long term: Property settlements affect your financial future. Make decisions based on what’s sustainable, not just what feels good right now.

Understanding property division in divorce is key to protecting your rights and securing your future. While the process can seem overwhelming, you don’t have to face it alone. Family lawyers are here to guide you through every step, from identifying assets to finalising legal documents.

Whether you reach an agreement out of court or need a judge to decide, knowing how property is divided—and what the law considers fair—will help you move forward with confidence. With the right advice and a clear plan, you can get through this process and start the next chapter of your life on solid ground.