FAQs

Overview of the Property Settlement Process

Property settlement refers to the division of property, assets (including superannuation), liabilities, and financial resources between parties after the breakdown of a relationship. The process aims to achieve a just and equitable distribution, taking into account the unique circumstances of each case. The law applies equally to both marriages and de facto relationships, including same-sex couples, provided certain criteria are met (e.g., the relationship lasted at least two years or there is a child of the relationship).

Steps in the Property Settlement Process

The Family Court (or Federal Circuit and Family Court of Australia) follows a four-step approach to determine property settlements:

1. Identify and value the asset pool: This includes all property owned by either or both parties, such as real estate, superannuation, shares, businesses, vehicles, and liabilities. Full and frank disclosure of financial circumstances is legally required.
2. Assess contributions: The court evaluates both financial and non-financial contributions. Financial contributions include income and property brought into the relationship, while non-financial contributions may include homemaking and parenting duties. Contributions made after separation may also be considered.
3. Evaluate future needs: The court then considers factors like age, health, earning capacity, responsibility for children, and financial resources to assess whether one party has a greater need for support or adjustment in their favour.
4. Consider whether the outcome is just and equitable: Finally, the court steps back to evaluate whether the proposed division is fair in all the circumstances.

Time Limits and Legal Process

Conclusion

The property settlement process under Australian family law aims to ensure a fair and equitable division of assets after relationship breakdowns. Property settlement negotiations and litigation can be complex. No two situations are the same and specialist advice should be obtained to navigate the complexities effectively.

Spousal maintenance is a key component of Australian family law, governed by the Family Law Act 1975 (Cth). It refers to the financial support that one partner may be required to provide to the other following the breakdown of a marriage or de facto relationship. This obligation arises when one party is unable to adequately support themselves, and the other party has the capacity to pay.

Legal Basis and Purpose

The Family Law Act, a person has a responsibility to financially assist their former spouse or de facto partner if they are unable to meet their own reasonable expenses due to circumstances such as:

• Having the care of a child of the relationship,
• Age or physical/mental incapacity for gainful employment; or
• Other adequate reasons the court considers just.

Spousal maintenance is distinct from child support, which is intended for the care of children. Spousal maintenance focuses solely on the needs and financial circumstances of the former partner.

Criteria for Determining Spousal Maintenance

When considering an application for spousal maintenance, the court evaluates both parties’ financial situations. Relevant factors include:

• Income, property, and financial resources,
• Age and health,
• Ability to work and earning capacity,
• Whether the marriage or relationship affected a party’s ability to earn (e.g., one partner gave up career opportunities to care for children),
• The standard of living during the relationship,
• Contributions made to the relationship (both financial and non-financial); and
• Responsibilities for any children under 18 or with disabilities.

The court must find that the applicant cannot reasonably support themselves and that the other party has the capacity to provide financial support.

Types of Spousal Maintenance

Spousal maintenance can be arranged in several ways:

• Periodic payments (e.g., weekly or monthly),
• Lump sum payments (one-time); and
• Payment of specific expenses, such as medical bills, housing, or education.

The arrangements can be made by agreement between the parties (formalised through a Binding Financial Agreement or Consent Orders) or through a court order if no agreement is reached.

Time Limits and Applications

Applications for spousal maintenance must be made:

• Within 12 months of a divorce being finalised, or
• Within 2 years of the end of a de facto relationship.

Outside these timeframes, parties must seek special leave from the court, which is only granted in exceptional circumstances.

Duration and Modification

Spousal maintenance is usually considered a short-term to medium-term measure to help a party become financially independent. It may be terminated or varied if circumstances change, for instance, if the receiving party remarries, becomes self-supporting, or if the payer experiences financial hardship.

Conclusion

Spousal maintenance in Australia serves to prevent financial hardship after separation, recognising that one party may be disadvantaged due to the roles undertaken during the relationship. While not automatic, the obligation reflects the principle of mutual responsibility even after a relationship ends. Legal advice is essential to understand rights and obligations and to ensure fair outcomes for both parties.

In Australian family law, superannuation is treated as a type of property that can be divided between parties following the breakdown of a marriage or de facto relationship. Unlike other assets, however, superannuation has unique characteristics—it is generally preserved until retirement and cannot be accessed immediately, which means it is often dealt with differently during property settlements.

Legal Framework

Superannuation splitting is governed by the Family Law Act 1975 (Cth) and the Family Law (Superannuation) Regulations 2025. These laws allow the Federal Circuit and Family Court of Australia to make orders to divide superannuation interests as part of the property settlement process.

Superannuation as Property

Superannuation is not treated as a financial resource or future income; it is treated as property, meaning it can be valued and divided like other assets. However, due to its preservation until retirement, superannuation is not physically accessible upon settlement—it is split by allocating entitlements between the parties within their respective superannuation funds.

Methods of Splitting Superannuation

Superannuation can be split in two main ways:

1. Agreement between parties: Parties can make a Binding Financial Agreement or apply for Consent Orders to formalise how superannuation is to be divided. This agreement must comply with legal requirements and be approved by the court (in the case of consent orders).
2. Court orders: If parties cannot agree, the court can make a superannuation splitting order. The court considers superannuation in the context of the overall asset pool and aims to achieve a just and equitable distribution.

Valuation of Superannuation

Valuing superannuation is essential to determining a fair division. Accumulation funds (the most common type) can usually be valued by obtaining a superannuation statement or using a standard valuation method. Defined benefit funds or self-managed superannuation funds (SMSFs) can be more complex and may require actuarial advice.

Splitting Options

A splitting order can direct:

• A base amount to be transferred from one party’s superannuation to the other, or
• A percentage split of future benefits.

The receiving party does not get cash; instead, the amount is transferred into their own super fund and preserved until retirement conditions are met.

Special Considerations

• De facto couples: Since 2009, superannuation splitting laws apply equally to de facto couples in most states and territories (excluding Western Australia, which operates under separate laws for de facto super splitting, though reforms are ongoing).
• Tax and fund rules: Superannuation splitting is governed not only by family law but also by superannuation fund rules and tax legislation, which can affect how splits are implemented.

Conclusion

Superannuation is a significant asset in many relationships and must be considered during property settlements under Australian family law. While it cannot be accessed immediately, mechanisms exist to ensure a fair distribution between parties. Legal and financial advice is critical due to the technical nature of superannuation splitting and its long-term financial implications.

In Australian family law, sole use and occupation refers to a situation where one party is granted exclusive rights to remain in the family home after separation, while the other party is excluded from residing there. This is typically a temporary arrangement and is made either by agreement or through a court order under the Family Law Act 1975 (Cth) (the Act).

The court has the power to make interim or final orders for sole occupation of a property under the Act. Such orders are usually sought when both parties have a legal or equitable interest in the home, but living together has become unsafe or impractical due to relationship breakdown, conflict, or risk of harm.

Factors Considered by the Court

When deciding whether to grant sole use and occupation, the court takes into account a range of factors, including:

The court’s primary aim is to ensure a just and equitable outcome that protects the welfare of all involved, especially any children.

Practical Implications

A sole occupation order does not transfer ownership of the property. It simply gives one party the right to live in the home to the exclusion of the other until a final property settlement is reached. The excluded party may still be liable for mortgage payments or other expenses, depending on the circumstances.

These orders are often used as an interim measure to maintain stability during the separation and property settlement process. Legal advice is recommended before applying.

Do both parties need lawyers?

In Australian family law, both parties are not legally required to have solicitors, but obtaining legal advice is strongly recommended in most cases. Family law matters—such as parenting arrangements, property settlement, spousal maintenance, and divorce—can be complex, especially when there are significant assets, children, or disputes involved.

Having a solicitor ensures that a party understands their legal rights, obligations, and entitlements, and can help avoid costly mistakes or unfair outcomes. Solicitors can also assist in negotiating agreements, drafting legally binding documents (such as Consent Orders or Binding Financial Agreements), and representing clients in court if necessary.

That said, some parties choose to self-represent (act without a lawyer), particularly in simpler or amicable cases. The courts provide resources to support self-represented litigants, but these individuals are held to the same legal standards as those with legal representation.

In many cases, parties may first engage in Family Dispute Resolution (FDR) or mediation without solicitors, and then consult lawyers to formalise agreements.

Ultimately, while solicitors are not mandatory, having legal advice is highly beneficial and often essential for ensuring a fair and legally sound outcome, particularly in contested or complex cases.

Overview of the Property Settlement Process

In Australian family law, divorce and property settlement are two distinct legal processes that often occur after the breakdown of a marriage, but they serve different purposes and follow different procedures.

Divorce

A divorce is the legal termination of a marriage. It is governed by the Family Law Act 1975 (Cth) and is a relatively straightforward process. To apply for a divorce, the couple must prove that the marriage has irretrievably broken down, demonstrated by a separation of at least 12 months. The application can be made jointly or individually, and there is no requirement to prove fault or wrongdoing.

Divorce does not resolve other matters such as parenting arrangements, financial support, or division of assets. It simply ends the legal relationship of marriage. After a divorce is granted, it becomes final one month and one day later, unless contested.

Property Settlement

A property settlement is the legal process of dividing the assets, liabilities, superannuation, and financial resources between parties after separation. This process applies to both married couples and de facto relationships, and can be resolved either by agreement (with Consent Orders or a Binding Financial Agreement) or by court proceedings.

The court uses a four-step approach to determine a just and equitable division:

1. Identifying and valuing the asset pool.
2. Assessing contributions by each party (financial and non-financial).
3. Considering future needs (e.g., age, health, earning capacity, care of children).
4. Determining a fair division based on the above.

Key Differences

• Purpose: Divorce ends the legal marriage; a property settlement divides financial interests.
• Timing: Property settlement can occur before or after divorce. However, an application must be made within 12 months after divorce.
• Process: Divorce is usually an administrative process; property settlement can be complex and may involve negotiations or court.

In conclusion, while divorce and property settlement often occur around the same time, they are legally separate matters and must be dealt with individually. Legal advice is recommended to ensure both processes are managed effectively.

Child support in Australia is a system designed to ensure that children receive adequate financial support from both parents following separation or divorce. The scheme is administered by Services Australia (Child Support) under the Child Support (Assessment) Act 1989.

Child Support Assessment

Child support is generally calculated using a formula that considers:

• Each parent’s income,
• The cost of raising children (based on research and government standards),
• The number of nights the child spends with each parent (care percentage); and
• The number of dependent children each parent supports.

Services Australia uses this information to determine how much child support should be paid and by whom. The system aims to reflect the relative financial capacity and caregiving responsibilities of each parent.

Types of Agreements

Parents can:

1. Use the standard assessment through Services Australia
2. Enter into a Child Support Agreement (limited or binding), which allows parents to set their own terms, including payment of school fees or other expenses, subject to approval.

Payments and Enforcement

Child support can be paid:

• Privately (directly between parents), or
• Through Services Australia, which can collect and enforce payments.

If a parent fails to pay, Services Australia has wide powers to enforce compliance, including garnishing wages, intercepting tax refunds, and restricting overseas travel.

Changing Assessments

Assessments can be reviewed if there is a significant change in circumstances, such as a change in income, care arrangements, or special needs of the child.

Conclusion

The Australian child support system is designed to prioritise the best interests of the child, ensuring they continue to benefit from both parents’ financial support, even after separation. Legal advice is often recommended when entering into private agreements.

In Australia, parenting matters are determined under the Family Law Act 1975 (Cth). When parents separate or divorce, arrangements must be made for the care, welfare, and development of their children. These arrangements can be made by agreement or decided by a court if parents cannot agree. The overarching principle is always the best interests of the child.

1. Best Interests of the Child

   The paramount consideration in any parenting matter is the best interests of the child. Following reforms that came into effect from 6 May 2024, the court now focuses more on individual circumstances and less on presuming equal shared parental responsibility which, if applicable, used to mandate an assessment of equal time.

   The court considers:

   • The child’s safety, including protection from abuse, neglect, or family violence.
   • The benefit to the child of having a meaningful relationship with both parents.
   • Any views expressed by the child, considering their maturity and understanding.
   • The child’s cultural background, especially for Aboriginal or Torres Strait Islander children.
   • The capacity of each parent to meet the child’s needs.
2. Parental Responsibility

   Parental responsibility refers to all the duties, powers, and responsibilities parents have in relation to their child. The court can allocate this responsibility in various ways. Previously, there was a presumption of equal shared parental responsibility, but after the 2024 amendments, the court now assesses this on a case-by-case basis.

   Parental responsibility may be:

   • Sole - where one parent makes all major decisions.
   • Joint - where both parents share decision-making.
   • Divided - where responsibilities are split between parents.
3. Parenting Arrangements

   Parenting arrangements include where the child lives, how much time they spend with each parent, and how decisions about the child are made. These can be formalised by:

   • A Parenting Plan – a written, but not legally enforceable, agreement.
   • Consent Orders – a legally binding agreement approved by the court.
   • Parenting Orders – made by the court after a hearing or trial.

   If parents agree, they do not need to go to court, but any agreements can be formalised to make them legally enforceable.

4. Court Process

   When no agreement can be reached, parents may apply to the Federal Circuit and Family Court of Australia. Before applying, they must attempt Family Dispute Resolution (FDR) unless exempted (e.g., in cases involving family violence or abuse).

   If the matter goes to court, the process may involve:

   • Filing of documents and affidavits.
   • Attending interim hearings.
   • Family reports from psychologists or social workers.
   • Appointment of an Independent Children’s Lawyer (ICL) in complex cases.
   • A final hearing, where a judge decides based on the evidence presented.
5. Flexibility and Change

   Parenting arrangements are not set in stone. Orders and agreements can be varied if there is a significant change in circumstances, such as relocation, changes in the child’s needs, or safety concerns.

   Conclusion

   In Australia, parenting matters are determined by prioritising the best interests and safety of the child. The law encourages cooperation and agreement between parents but provides a structured legal process when disputes cannot be resolved privately.

In most cases, yes, you must attend family law mediation—also known as Family Dispute Resolution (FDR)—before applying to the court for parenting orders in Australia.

Under the Family Law Act 1975, parties are generally required to make a genuine effort to resolve parenting disputes through FDR before starting court proceedings. This process is designed to help parents reach agreements about parenting arrangements without going to court. A registered FDR practitioner facilitates the discussion and can issue a section 60I certificate if mediation is attempted but unsuccessful.

However, there are exceptions to this requirement. You may be exempt from attending FDR if:

• There are concerns about family violence or child abuse,
• The matter is urgent (e.g., risk of abduction or harm),
• One party cannot participate due to incapacity or location,
• The application is for consent orders (where both parties agree), or
• A previous FDR attempt was made in the past 12 months.

Even if an exemption applies, it’s often recommended to seek legal advice. FDR is an important step that can save time, reduce conflict, and help achieve more cooperative parenting outcomes. If successful, agreements can be formalised by a parenting plan or consent orders.