Home > Resources > FAQs & GUIDES
This document summarises some of the more commonly asked questions regarding property settlement. If your question is not answered on this page or you need further advice on any family law related matter please phone us on 02 6651 8440 or email info@bryantmckinnon.com.au.
Updated February 2026
We use the term “property settlement” to refer to the division of assets and liabilities after the dissolution of a marriage or de facto relationship. Assets are property such as real estate, vehicles and cash bank accounts, while liabilities are debts including credit cards and mortgages. “Financial resources” include entitlements such as long service leave or potential inheritances that you or your partner expect in the future but can’t access yet. You can refer to our Glossary whenever you see a term you aren’t sure about.
The Family Law Act specifies how to distribute property when a marriage or de facto relationship dissolves, although the Court also has wide discretion in determining what is just and equitable (i.e. fair).
This is the typical process:
STEP 1: What is the value of you and your partner’s assets, liabilities and financial resources?
STEP 2: What were each of you and your partner’s contributions to the property pool? This includes financial and non-financial, direct and indirect contributions, as well as contributions as homemaker or parent.
STEP 3: Should you or your partner receive any adjustments based on current and future needs? There is a long list of factors that may justify an adjustment, including health, capacity for work, dependants and new living arrangements.
STEP 4: Based on the results of steps 1, 2 and 3, who should receive what property, having regard to what is just and equitable in all the circumstances?
Yes. You and your partner can finalise your property settlement matter without needing to go to Court. Your agreement can be made into Consent Orders or be included in a contract called a Binding Financial Agreement. However, Binding Financial Agreements are generally easier to dispute than Court orders and as such Consent Orders are preferred in most circumstances.
Yes, you should. You can do this either by way of a Consent Order from the Court or a contract between you and your partner called a Binding Financial Agreement. If you opt for a Binding Financial Agreement, you and your partner do not need to present the agreement to a Court, however you must both obtain independent legal advice to ensure the agreement will be binding.
Not necessarily. How property is divided depends on several considerations, including you and your partner’s relative contributions to the property pool and whether either of you merit any adjustments in your favour. Adjustments may be made for a wide range of reasons, including health, capacity for work, dependants and new living arrangements. That said, you and your partner’s contributions may be seen as equal, especially if you have had a long relationship.
Not necessarily. Almost all property, including that brought into the marriage, will be considered part of the property pool. This is particularly true in the case of a lengthy marriage, where it is generally assumed that both parties have benefited from the property over a long period of time. That said, property brought into the relationship may still be relevant when assessing each party’s contributions to the property pool.
The Family Law Act recognises that relationships are often structured so that one party takes time out of the paid workforce for the benefit of the partnership. If you have made non-financial contributions to the marriage by staying at home to raise children, or taking care of the family home, this is considered just as important as evidence of financial contributions.
Yes. You must disclose all of your assets, liabilities and financial resources. You also need to keep that disclosure up to date throughout the settlement process.
Your partner must disclose their assets, liabilities and financial resources. If you are concerned that your partner may be hiding certain assets, we will usually be able to trace them. In some circumstances, we can obtain information about your partner’s financial position without them being made aware. There are serious consequences for hiding or failing to disclose assets.
Generally, property accumulated after separation will still form part of the property pool. How those assets were accumulated may be relevant when assessing each party’s contributions. If joint assets were used, or if one party contributed to the accumulation of post-separation assets, this may make those assets less distinguishable from the rest of the property pool.
You can reach an agreement on property settlement at any time after separation, but beware of the statutory limitation periods. If you are married, agreement can be reached before or after you are formally divorced. You must reach agreement within 12 months from the date of divorce, or two years from separation in a de facto relationship. If you cannot agree, you will need to take your property settlement to Court within the same time limits. There are some exceptions to this rule and you may contact us to discuss your particular circumstances.
Superannuation is treated separately from other assets or financial resources, and can be quite a complex issue. We provide further information about superannuation splitting in our Superannuation FAQs. You will need to reach a valuation of any defined benefit or self-managed superannuation funds. You will also need to decide whether to transfer or quarantine superannuation funds, or alternatively to adjust the division of non-superannuation assets.
Any inheritances that you or your partner expect in the future may be considered “financial resources”. Although they cannot always be distributed, they may affect the way assets and liabilities are divided. Will any tax liabilities (such as capital gains tax) be included in the property settlement? Tax debts are generally considered liabilities as part of the property pool. They will usually be seen as joint liabilities. However, the law defers capital gains tax liability on property that is transferred as part of the property settlement until that property is sold. This means that the partner who received the property will be liable for any capital gains tax if and when they sell it. In most cases, property settlement orders will also exempt the parties from paying stamp duty in New South Wales.
If you cannot agree, you will need to take your property settlement to Court within 12 months from the date of divorce, or two years from separation in a de facto relationship. However, it is preferable to try to agree out of Court.
Any time up to 12 months from the date of divorce, or two years from separation in a de facto relationship. There are some exceptions to this rule and you may contact us to discuss your particular circumstances. Is there a “no win no fee” option? The Family Law Act prohibits “no win no fee” arrangements in property settlement cases.
In Australia, we use the term “binding financial agreement” to refer to a legal agreement that you and your partner enter into to govern what will happen to your property in the event that your relationship ends. You and your partner can make this type of contract before or during your relationship, or it can form part of the property settlement process after separation. The law sets out strict requirements for Financial Agreements to be considered binding, and the Court may decide not to enforce the agreement if it does not meet those requirements.
This information is general in nature and does not constitute legal advice. Laws and procedures may change after publication, and some information may not apply to your particular circumstances. Please contact our office if you would like to arrange an appointment to obtain advice specific to your situation.