In Australia, assets are not automatically split 50/50 after divorce. The Family Court considers each person’s financial and non-financial contributions, future needs, and whether the outcome is just and equitable based on the circumstances.
- Author bio: “Reviewed by Peter Andrews, Family Law Specialist and Legal Practitioner Director in Newstead, Brisbane.”
- Last-reviewed date: December 2025
- Cite Family Court of Australia, QLD Gov, and local Brisbane legal resources
Understanding how to split assets in divorce is crucial when proceeding with a property division and needing to divide assets fairly with your former partner. You might be worrying about how to get your rightful share, and that’s completely understandable. This can be a stressful time, but there are legal pathways designed to help you achieve a just and equitable division. With the right family lawyer guiding you, you can navigate the process confidently and protect your financial interests. Once you understand your options, you can take the next step toward a stable and positive new chapter in your life.
Key takeaways
- Parties can use informal arrangements to split assets.
- Binding financial agreements are legally enforceable and don't involve court oversight.
- Consent orders are organised by agreement through the Court.
- Various factors determine your entitlements in Australian divorce settlements.
- A case study can show how an asset split may work.
Asset Division in Divorce
In Australia, splitting assets in a divorce is done through a process known as property settlement. A property settlement is the formal division of property following a couple separating. This legal process determines how assets, liabilities, and financial resources accumulated during the relationship will be distributed between both parties.
The Family Court generally follows a five-step process when deciding how assets and liabilities will be divided. This structured approach ensures consistency and fairness in property settlements across all cases. The process includes identifying and valuing the asset pool, assessing contributions, evaluating future needs, determining what is just and equitable, and considering whether the proposed orders are practical.
The court will look at the value of the assets and liabilities at the time of the court proceedings, not what their value at the time of separation. This means that any changes in asset values whether increases or decreases that occur between separation and the final settlement will be taken into account. Market fluctuations, property appreciation, business growth, or debt accumulation after separation all form part of the final calculation when aiming for a fair property distribution in a divorce.
Non-financial contributions are equally important, including homemaking, child-rearing, and other unpaid work that supports the family. The Family Court recognises that contributions to a relationship extend far beyond financial inputs. Caring for children, maintaining the household, supporting a partner’s career, and enabling the other party to build assets through unpaid domestic work are all valued equally to direct financial contributions.
The court considers the standard of living enjoyed during the marriage and strives to maintain a similar standard for both parties. While it may not always be possible to maintain the exact same lifestyle post-separation, the court aims to ensure that neither party experiences an unfair reduction in their standard of living, particularly where one party has sacrificed earning capacity for family responsibilities.
Superannuation is often one of the most significant assets to be divided during a divorce in Australia. Superannuation accumulated during the relationship is treated as property and can be split between parties. This is particularly important for parties who have taken time out of the workforce or worked part-time to care for children, as their superannuation balances are often significantly lower than their former partner’s.
The Family Court considers several factors when determining how superannuation should be split, including the length of the marriage and the contributions made by both parties. The court examines both financial and non-financial contributions to superannuation accumulation, future needs, and the overall fairness of the proposed division. Superannuation splitting can occur through consent orders or binding financial agreements.
The Family Court will look at the current and future needs of each person to see if there should be any adjustment to the percentages allocated to each party based on contributions to ensure the property settlement is fair. Future needs factors include age, health, earning capacity, care of children, financial resources, and the impact the relationship has had on each party’s ability to earn income. These adjustments ensure the settlement reflects not just past contributions but also future financial security.
Divorce in Assets Split How To: Practical Tips
Splitting assets during a divorce can be challenging and complex. The process involves identifying all assets and liabilities, determining their value, assessing contributions, and negotiating a fair division. Emotions can run high, and financial matters can become contentious, making it essential to approach the process with clear information and professional guidance.
During a divorce, many couples may be surprised that both individual and joint assets accumulated throughout the relationship are taken into account. This includes assets owned before the relationship began, gifts and inheritances received during the marriage, and assets acquired after separation but before final settlement. The court considers the entire asset pool when determining a fair division.
Divorce settlements often require both parties to compromise on certain issues in order to reach an agreement. Rarely will either party receive everything they want. Successful settlements involve give-and-take, with each party prioritising their most important needs and being flexible on less critical matters. Compromise can save significant time, money, and emotional stress compared to lengthy court battles.
It is important to seek legal advice to ensure that your interests are protected during the asset division process. An experienced family lawyer can explain your rights and entitlements, identify all assets that should be included in the settlement, advise on realistic outcomes based on your circumstances, and negotiate on your behalf to achieve a fair result.
The division of assets does not necessarily mean a 50/50 split; it is based on the unique circumstances of each case. While equal division may be appropriate in some cases, the Family Court considers contributions and future needs to determine what is just and equitable. Splits can range widely depending on factors such as the length of the relationship, financial and non-financial contributions, care of children, and each party’s future earning capacity.
It is generally best if you can reach your own agreement with your former spouse or partner. Negotiated settlements are typically faster, less expensive, and less stressful than court-imposed decisions. When parties work together to reach agreement, they maintain control over the outcome and can craft creative solutions that meet both parties’ needs better than a court order might.
It is important to consider all assets such as financial contributions, non-financial contributions, and debts when dividing property. A comprehensive approach ensures nothing is overlooked. This includes obvious assets like the family home and bank accounts, as well as less obvious items like superannuation, business interests, vehicles, furniture, shares, insurance policies, and even potential tax refunds or liabilities.
A professional valuation of assets is important to ensure a fair split of the assets. Accurate valuations prevent disputes and ensure both parties understand the true value of what is being divided. Professional valuers should be used for real estate, businesses, and other significant assets to provide independent, credible assessments that both parties can rely on.
It is important to keep the lines of communication open with your ex-partner during a divorce settlement. While this can be difficult, especially in high-conflict situations, maintaining respectful communication can facilitate negotiations and help reach agreement more quickly. Where direct communication is not possible or safe, lawyers or mediators can facilitate discussions.
Common pitfalls include not hiring a lawyer, not getting a valuation, and not considering tax implications. Self-represented parties often overlook important assets, accept unfair settlements, or fail to properly document agreements. Without professional valuations, parties may divide assets based on incorrect values. Tax consequences of asset transfers, superannuation splits, and capital gains can significantly impact the real value of a settlement if not properly considered.
Four Ways to Split Assets During Divorce
Couples have four options when splitting their assets after a divorce. Understanding how to split assets in divorce through these legal pathways ensures you choose the right approach for your circumstances.
1. Non-Legal Arrangement
Non-legal arrangements are made when a couple splits amicably and can agree on dividing their assets without legal documentation. This kind of agreement does not prevent one of the parties from going to court later to ask for financial orders under the Family Law Act.
How to make an effective non-legal arrangement
There’s no set process for making an informal agreement. Here’s a template you can use.
Step 1: Communication
Have an open discussion about what you want from the settlement. Remember that there are two parties involved. Be prepared to compromise.
Step 2: Compile Financial Documents
Lay out your finances. There’s no legal oversight, so you have to trust each other. You can’t make a fair agreement if you don’t know each party’s actual finances.
Step 3: Consider future needs
Think about the future needs of both parties. Does one party have a reduced earning capacity or limited access to financial resources? Think about retirement, education for children, health issues, and potential changes in living arrangements.
Step 4: Draft the agreement
Sign off on the agreed terms. Include how you will divide assets and debt responsibilities, and whether ongoing financial support will be paid to the financially weaker spouse.
2. Binding Financial Agreement
A binding financial agreement (BFA) is a legal document that can be entered into before, during, or after the relationship. When entered into before marriage, they are referred to as a prenuptial agreement. BFAs are final and enforceable.
How to form a binding financial agreement:
There’s a set legal framework for creating a BFA.
Step 1: Communication
Both parties should openly discuss their financial situations, objectives, and concerns regarding the agreement.
Step 2: Disclose finances
Both parties must make a full and frank financial disclosure. This may include bank accounts, stock portfolios, and real estate. You must also factor in debts to understand the net asset pool.
Each party must seek independent legal advice for a legal fee. The lawyers will explain the party’s rights and obligations under the agreement. The party should understand the advantages and disadvantages of entering into the BFA.
Step 4: Draft the agreement
One party’s lawyer usually drafts the agreement. The document outlines terms for asset division and any spousal maintenance arrangements.
Step 5: Sign the agreement
Once both parties are satisfied, the BFA is signed. The signatures must be witnessed by the lawyers who provided the legal advice. Each lawyer must provide a certificate confirming that independent legal advice was given.
3. Consent Orders
A financial consent order formalises the division of assets and financial obligations after a relationship ends. It’s approved by the Court, compelling compliance with the agreed terms. This order can cover property and spousal maintenance. Consent orders don’t deal with child support.
How to apply for consent orders:
You must fill out an Application for Consent Orders. Having an experienced divorce lawyer will help you to understand the needs and rights of both you and your ex-spouse.
4. Litigation
Litigation is where the Family Court determines how the couple’s assets and liabilities will be split when agreement is impossible. This is the most lengthy and costly process. It usually requires a court proceeding. Litigation is generally a last resort due to its emotional and financial impact on families.
Court action may be necessary when:
Agreement isn’t possible
Dispute resolution has failed
Family violence concerns make mediation unsafe
Legal Agreements in Divorce
A Consent Order is a legally binding document that defines the agreement between two parties in a divorce, including how their assets will be divided. Consent orders are approved by the Family Court and become enforceable like any other court order. They provide finality and legal certainty, preventing either party from making future claims against the other’s property.
A prenuptial agreement, also known as a binding financial agreement, outlines how assets and debts will be divided if a marriage ends. These agreements can be made before marriage (prenuptial), during marriage (postnuptial), or after separation. They allow couples to determine their own financial arrangements rather than leaving it to the court.
A binding financial agreement specifies what assets must be divided between two people and is generally not overruled by the court without a special event. The court will only set aside a BFA in limited circumstances, such as fraud, duress, unconscionable conduct, or if the agreement was not properly executed with independent legal advice. This makes BFAs a powerful tool for protecting assets.
For a prenuptial agreement to be valid, it must be in writing, both parties must receive independent legal advice, and the agreement must fully disclose each person’s financial situation. Without these requirements, the agreement may be invalid and unenforceable. Each party must have their own lawyer certify that they received advice about the advantages and disadvantages of entering into the agreement.
The Family Court provides an online tool to assist filing consent orders by yourself, as well as free legal advice from a lawyer or a family dispute resolution practitioner. The Commonwealth Courts Portal allows parties to file applications for consent orders electronically. However, even with these tools available, it is advisable to seek legal advice to ensure the proposed orders are fair and properly drafted.
If either party decides to seek further financial orders outside of the Consent Order, the agreement may no longer be valid. Consent orders are final, and once made, they prevent either party from making further property claims unless there has been a material change in circumstances or fraud. This finality is one of the key benefits of formalising agreements through consent orders.
In Australia, superannuation can only be split by court order or with a binding financial agreement from both parties. Informal agreements about superannuation splitting are not enforceable. The superannuation fund must be notified of the split, and specific procedural requirements must be followed to ensure the split is properly implemented.
The court must be satisfied that the property settlement is fair before it will make orders in terms of the agreement. Even when parties reach agreement, the court reviews consent order applications to ensure they are just and equitable. If the court has concerns about fairness, it may request additional information or refuse to make the orders.
How Are Assets Divided in the Family Court?
A four-step process calculates a just and equitable outcome under the Family Law Act when determining how to split assets in divorce proceedings.
Valuation of assets
Assessing the contributions of both parties
Determining future needs
Evaluating the consent order’s impact
Legal Framework for Asset Division
Applications for property orders must be filed with the Federal Circuit and Family Court of Australia if no agreement is reached outside of court. The court has jurisdiction to make binding property orders that divide assets and liabilities between separated couples. Applications must be filed within specific time limits: 12 months after divorce for married couples, or 2 years after separation for de facto couples.
In Brisbane, the legal process for splitting assets is governed by the Family Law Act 1975, updated on June 10, 2025. The Family Law Act sets out the legal framework for property settlements, including the factors the court must consider, the types of orders that can be made, and the procedures that must be followed. Recent amendments have strengthened protections for parties affected by family violence.
A judge in court will make a legally binding decision based on the evidence presented in accordance with established procedures. Court hearings involve both parties presenting evidence through affidavits, financial statements, and witness testimony. The judge considers all evidence, applies the relevant legal principles, and makes orders that are legally enforceable. Non-compliance with court orders can result in penalties.
Both parties have a strict legal duty of full and frank financial disclosure, requiring them to share all financial documents. This duty is fundamental to the property settlement process. Each party must disclose all assets, liabilities, income, and financial resources, regardless of whether they believe an item is relevant. Failure to disclose can result in the court setting aside orders or imposing penalties.
The Family Law Act 1975 governs laws related to marriage, divorce, de facto relationships, property settlements, guardianship, adoption, and the care of children in Australia. This comprehensive legislation provides the legal framework for all family law matters in Australia. It establishes the principles of no-fault divorce, outlines how property should be divided, and sets out the court’s powers to make orders.
Step 1: Valuation of Assets
The first step of the process is to identify and value the property pool. This includes assets you own jointly and assets and liabilities you own individually. Each party must fully disclose their financial circumstances.
Assets and liabilities that must be considered in the pool include those acquired before and during the relationship. Any marital assets or debts acquired after the relationship ended could also be considered. This is because the asset pool is valued at the time of the settlement, not at the point of separation or divorce.
Step 2: Assessing Contributions
This step is about understanding what each of you brought to the relationship. Financial contributions can include wages, government allowances, inheritance, dividends from shares, or any other income you receive. Not all contributions to a relationship are financial.
Non-financial contributions that need to be considered include being a caregiver of children and a homemaker. Other examples may also apply to your situation, such as renovating a property or even indirect contributions from family members. These can include:
Providing childcare
Contributing to a deposit to purchase a property
Being a guarantor on a home loan
Arrangements for contributions or support in family law matters, such as the above, can often be formalised with a consent order.
Each of these contributions is assessed and compared against the asset pool to determine the first split of assets between the parties under consent orders.
Step 3: Determining Future Needs
Now that all the assets, liabilities, and contributions to the relationship have been assessed, the property settlement must consider each party’s financial future.
Several things need to be considered for each person. These include their age, health, future earning capacity, employment prospects, and financial resources. The Court will also consider:
Who will be responsible for looking after the children of the relationship?
Individual living requirements
The impact the relationship may have had on each person’s earning capacity
Financial considerations such as the cost and filing fee for consent orders
Step 4: Evaluating the Impact
The final step in the process is for the Court to consider whether their split of the assets and debts is just and equitable for you and your ex-partner. If it’s not satisfied, the Court may make a property adjustment.
Some men believe they will be worse off in a financial settlement even if they have been the primary income earner in the relationship. This is usually untrue, as men tend to rebound quicker financially post-divorce than women. This is because women are often the primary caregivers of children.
Factors Influencing Asset Division
Non-financial contributions include homemaking, child-rearing, and other unpaid work that supports the family. The Family Court recognises that staying home to care for children, managing the household, cooking, cleaning, and supporting a partner’s career are valuable contributions that enable the accumulation of assets. These contributions are given equal weight to direct financial contributions.
The age and health of each party play a significant role in determining future needs. Younger parties generally have more time to rebuild their financial position and earning capacity after separation. Older parties, particularly those approaching retirement, may have limited opportunities to increase their superannuation or assets. Poor health can affect earning capacity and increase future financial needs for medical care.
If one spouse has primary responsibility for the care of the children, this will influence the division of assets. The primary carer often has reduced earning capacity due to childcare responsibilities and may need additional financial resources to provide suitable housing and meet the children’s needs. The court recognises that caring for children is both a contribution and a future need that affects the property settlement.
Future child-related expenses, such as education and healthcare, are considered when dividing assets. The court considers the ongoing costs of raising children, including school fees, extracurricular activities, medical and dental expenses, and other child-related costs. The parent with primary care responsibilities may receive a larger share of assets to ensure they can meet these expenses.
Since the updates in June 2025, the court must consider the economic impact of family violence on a party’s ability to contribute or earn in the future. This important amendment recognises that family violence can have long-term economic consequences, including reduced earning capacity, interrupted careers, mental health impacts affecting employment, and ongoing safety costs. The court can adjust property settlements to account for these impacts.
What to Consider When Dividing Assets
Debts are split in a financial settlement, too. If one partner is given a more significant portion of the asset pool, they may also take on more debt
A common challenge couples face is when they get fixated on a percentage they believe they deserve. There is no set percentage in Australia’s Family Law Act. Focus on your needs and contributions
Companion Animals in Divorce
New rules for 2026 consider the welfare of companion animals during asset division, assessing attachment of each person or child to the pet. Following amendments to the Family Law Act effective from June 10, 2025, the court can now make orders about the care and welfare of companion animals (pets) when dividing property.
What Am I Entitled to in a Divorce Settlement?
There is no set percentage under Australian law when dividing assets. This can make splitting your assets and liabilities challenging. Divisions will be different in each circumstance.
What is the average split in a divorce settlement?
A 60/40 split tends to be the most common division in Australian divorce settlements. For many couples, one partner will contribute more financially, while the other may contribute more in caring for children and looking after the home.
In these situations, it is common for the party making direct financial contributions (often a male) to end up with 40% of the assets. The partner who contributed mainly non-financially (usually female), may get 60%. While this may seem unfair at face value, the Court makes adjustments based on the future needs of the individuals.
What determines the average split of an asset pool?
One party often has more earning capacity and income and is therefore deemed able to recover from the divorce settlement more quickly than their ex-spouse. The partner who contributed mainly non-financially to the relationship typically has a lower earning capacity than their ex-spouse. In this case, they would be awarded a higher percentage to address their future financial needs.
A 70/30 split in the division of assets is rarer. However, it can still happen. This usually occurs when the property pool is large (over $10 million), and one partner contributed most of the property.
Which Assets Are Considered in a Divorce?
It might surprise some couples what assets and liabilities are considered in a divorce settlement. You often need to consider assets brought into the relationship, acquired both separately and jointly during the relationship, and even assets and liabilities gained after the relationship.
Usually considered in the asset pool are:
Property owned both individually and jointly
The respective income of each party
The superannuation of each party
Debts owing by one or both parties
Some financial resources may not form part of the property pool, but may still have an effect on a settlement. An example may be an expected pay out from a personal injury claim.
How Can I Protect My Assets from Divorce?
A BFA may enable a party to create a financial agreement during a relationship. When entered into before marriage, a BFA is sometimes referred to as a prenuptial agreement. While some people think a prenup is only used when the marriage is expected to fail, you can compare it to health insurance.
Prenuptial agreements may allow you to establish how current and future assets will be handled in a property settlement. For example, you may purchase property or receive an inheritance post-separation, which you want to retain. With the help of a divorce lawyer, you may organise a financial agreement that accounts for such events.
Can I Get Divorced Without a Financial Settlement?
Under Australian law, divorce and financial settlements are handled separately. You can file for a divorce without a financial settlement. However, you must settle financial matters within 12 months of divorcing. If you miss this deadline, you might lose your right to a settlement.
Divorce Property Settlement Example
It’s human nature to seek out similar situations to understand what we should do and imagine what outcome we might expect. The Australian Government has supplied this case study in the Property and Financial Agreement and Consent Orders Guide issued by the Attorney-General’s Department.
Case Study
Drago and Constance are separating. They have been together for 15 years and married for eight years. Drago works full-time and earns $87,000 a year. Constance works part-time and makes $68,000 a year.
They have two children, aged 6 and 4. Using the negotiation guide, they arrived at the following negotiated property settlement proceedings and will seek a property consent order from the Court.
Joint Assets and liabilities:
A family home valued at $670,000 with a $250,000 mortgage. Net value: $420,000
Family car #1 Subaru Forester valued at $24,000 with a $12,000 loan. Net value: $12,000
Family car #2 Holden Commodore. Net value: $8,000
Furniture. Net value: $25,000
Joint savings account. Net value: $15,000
Westfarmers shares. Net value: $10,000
Joint transaction account. $1,200, with a $500 overdraft. Net value: $700
Joint credit card debt. $8,000
Individual Assets and liabilities:
Drago’s Superannuation. Net value: $300,000
Constance’s Superannuation. Net value: $120,000
Drago’s savings account. Net value: $20,000
Drago’s boat. Net value: $5,000
Identifying Their Contributions
Both Drago and Constance have worked throughout their relationship. Since having children, Constance has worked part-time to care for the children two days a week. She also takes the children to and from day care and school.
While Drago and Constance try to share caring responsibilities for the children, Drago travels to work. Therefore, Constance is often solely responsible for caring for the children. They also both acknowledge that Constance’s ability to earn superannuation was limited by extended maternity leave and the fact that she has been working part-time.
Based on Constance having the majority of childcare responsibilities, she and Drago have agreed that the property should be split with an adjustment in Constance’s favour.
Considering the Section 75(2) Factors
Section 75(2) of the Family Law Act guides how the Family Court considers spousal maintenance in a divorce. This section lists factors the Court must consider when determining what is just and equitable in maintenance matters.
Drago and Constance are both in their late 30s and are likely to be able to work until retirement. They agree that the children should live at each of their houses and acknowledge that Constance will likely have significantly more caring responsibilities than Drago.
This will impact Constance’s ongoing ability to work full-time. They agree that Constance should receive spousal maintenance to reflect her lost potential earnings.
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Conclusion: Understanding How to Split Assets in Divorce
If the prospect of unwinding your financial assets after divorce seems stressful, don’t be worried. Knowing how to split assets in divorce through several legal pathways ensures you’re treated fairly. There are multiple options available including informal arrangements, binding financial agreements, consent orders, and court proceedings. A good lawyer may help you assess your options and get your entitlement. Understanding how to split assets in divorce properly protects your financial future and provides certainty as you move forward.
Peter was super helpful with all of my legal needs. Super affordable and has a wealth of knowledge to assist with my marriage split. Definitely recommend him to family and friends. – Kate Gallagher
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