The most common and most costly misunderstanding in Australian family law is that a divorce sorts out the money. It does not. A divorce order ends the marriage and nothing else. Property division and parenting arrangements are separate applications, governed by separate provisions, running on separate clocks, and one of those clocks starts ticking the day the divorce becomes final.
Everything that follows sits under a single piece of Commonwealth legislation, the Family Law Act 1975. Understanding how its parts fit together before you make your first decision is what keeps a separation from becoming a three-year matter. Fixed-fee family law arrangements have become more common precisely because clients want certainty about that timeline and its cost before they commit.
Which Court and Which Law Applies to You
Since September 2021, most family law matters in Australia have been heard by the Federal Circuit and Family Court of Australia, which merged the two previously separate federal courts into a single entity with a common set of rules, forms and case management practices. It operates in two divisions: Division 2 handles the bulk of filings, while Division 1 deals with the most complex matters and appeals.
Western Australia is the standing exception. It retains its own Family Court of Western Australia, and de facto financial matters there are governed by the Family Court Act 1997 (WA) rather than the Commonwealth provisions. If you separated in Perth, advice written for Sydney or Brisbane may not transfer cleanly, particularly on superannuation splitting for de facto couples.
De facto couples elsewhere in Australia are generally covered by the same property and maintenance framework as married couples, provided the relationship meets the statutory definition and a geographical and duration threshold is satisfied. The usual gateway is a relationship of at least two years, though there are alternatives where there is a child of the relationship or substantial contributions have been made.
Three Separate Processes, Three Separate Clocks
Treating divorce, property and parenting as one process is where people lose their entitlements. They are distinct, and the deadlines differ.
| Process | What triggers it | Time limit | Usual pathway |
|---|---|---|---|
| Divorce | Twelve months of separation, no fault required | No deadline to apply once eligible | Online application through the Commonwealth Courts Portal, usually decided without either party attending |
| Property settlement and spousal maintenance | Separation; a divorce is not required first | Twelve months from the date a divorce becomes final for married couples, or two years from the end of a de facto relationship | Negotiation, then consent orders or a binding financial agreement; court application if no agreement |
| Parenting arrangements | Separation, or any dispute about care of a child | No deadline, but delay itself becomes a factor in what the court orders | Family dispute resolution first in most cases, then consent orders or a court application |
Married couples must be separated for twelve months and one day before applying for divorce. Separation under the one roof is recognised, but it must be proved, ordinarily by an affidavit from each party and a supporting affidavit from an independent person describing the changed household arrangements. If you have been married less than two years, you generally must attend counselling and file a certificate to that effect, or obtain the court’s permission to proceed without it.
A divorce order does not take effect immediately. It becomes final one month and one day after it is made, and that is the date from which the twelve-month property limitation period runs. Applications made outside the limitation period require leave of the court, which is not routinely granted. Filing for divorce before your property matters are resolved is a decision worth taking deliberately rather than by default.
How Property Settlement Is Actually Decided
There is no fifty-fifty starting point in Australian law, and there is no formula. The court works through a structured sequence, and any competent negotiation between solicitors follows the same sequence.
- Decide whether an order should be made at all. Following the High Court’s decision in Stanford v Stanford, a court must first be satisfied that altering existing property interests is just and equitable, rather than assuming a division is required.
- Identify and value the asset pool. Everything owned by either party, jointly or separately, wherever located: real property, superannuation, business interests, vehicles, shares, savings, and all liabilities. Both parties owe a duty of full and frank disclosure, which continues for the life of the matter.
- Assess contributions. Financial contributions, non-financial contributions, and contributions as homemaker and parent, weighed across the whole relationship. Homemaker contributions are not treated as inferior to income earning.
- Assess future needs. Age, health, income and earning capacity, care of children under eighteen, and the standard of living that is reasonable in the circumstances. This step commonly produces an adjustment in favour of the party with lower earning capacity or primary care of children.
- Step back and test the overall result. The court asks whether the proposed division is just and equitable in the round, and will adjust if it is not.
Amendments to the property provisions that commenced in 2025 restructured how these considerations are set out and expressly recognise the economic effect of family violence on a party’s contributions and future circumstances, as well as introducing specific provisions dealing with companion animals. If your matter involves family violence, raise it with your solicitor early; it is now squarely relevant to financial outcomes and not only to parenting.
Superannuation Is Property, and It Is Splittable
Superannuation can be split between separating parties by court order or by agreement, under the dedicated part of the Family Law Act that deals with it. It is not cash, and a splitting order does not release funds early; the transferred amount remains preserved in the receiving party’s fund until a condition of release is met. Defined benefit interests require a valuation using the prescribed method, and self-managed funds add trustee obligations that a general practitioner may not handle regularly.
Consent Orders Versus a Binding Financial Agreement
If you reach agreement, you have two ways to make it stick. An Application for Consent Orders asks the court to approve your agreement and make orders, which requires the court to be satisfied the arrangement is just and equitable. The filing fee is modest, no attendance is normally required, and stamp duty exemptions typically apply to transfers made under a court order.
A binding financial agreement is a private contract that ousts the court’s jurisdiction to divide property. It does not require court approval, so it can depart from what a court would order, but each party must receive independent legal advice and a signed statement confirming it. Agreements have been set aside for non-disclosure, defective advice certificates, and, as the High Court confirmed in Thorne v Kennedy, undue influence and unconscionable conduct where one party was placed under real pressure to sign.
Parenting After the 2024 Reforms
The parenting framework changed materially with reforms that commenced in May 2024. The presumption of equal shared parental responsibility was removed, along with the linked requirement for courts to consider equal time or substantial and significant time. The persistent public belief that separated parents start from a right to week-about care was never quite accurate, and it is now clearly wrong as a matter of law.
What remains is the best interests of the child, assessed against a consolidated list of considerations. In practical terms the court focuses on:
- The safety of the child and of each person who cares for them, including any history of family violence or family violence orders
- What arrangements promote the child’s developmental, psychological, emotional and cultural needs
- The capacity of each person who will care for the child to meet those needs
- The benefit to the child of a relationship with both parents and with other significant people, where it is safe
- Any views expressed by the child, given weight appropriate to their maturity and understanding
- For Aboriginal and Torres Strait Islander children, the additional consideration of their right to enjoy their culture and connection to family, community and country
Before filing a parenting application you generally must attempt family dispute resolution and obtain a section 60I certificate from an accredited practitioner. Exceptions apply where there is family violence or child abuse, where the matter is urgent, or where one party cannot participate. Do not treat the certificate as a formality: mediation resolves a large proportion of parenting disputes, and the court expects genuine effort.
Controlling Cost and Choosing a Pathway
The general rule in family law is that each party pays their own costs, with the court retaining power to order otherwise in defined circumstances, including where a party has behaved unreasonably or failed to disclose. That default means litigation cost is rarely recovered, which changes the maths on fighting over a marginal issue.
The realistic ladder runs from cheapest to most expensive: direct negotiation, family dispute resolution or mediation, solicitor-led negotiation, a round-table conference or arbitration for financial matters, and finally court. Most matters that reach court still settle before final hearing, frequently at a court-ordered conciliation conference or on the steps. Recognising that early is the single biggest cost saving available.
Practical steps that genuinely reduce fees include gathering your own disclosure documents rather than paying a solicitor’s rate to chase them, keeping communication about the children on a dedicated app rather than in emails your lawyer must read, agreeing a valuation method before instructing a valuer, and asking for a fixed-fee scope where the work is predictable. Readers comparing how a different family law system approaches maintenance calculations will notice how much more formulaic some overseas jurisdictions are; Australia deliberately favours discretion, which is why outcomes here are ranges rather than numbers.
Frequently Asked Questions
Do I have to be divorced before dividing property?
No. Property settlement can be finalised at any time after separation and does not require a divorce. In fact many couples finalise property first, because the divorce order starts a twelve-month limitation period for property applications. If that period expires you need the court’s permission to apply, which is discretionary and not assured.
Is the asset pool always split fifty-fifty?
No. There is no statutory starting point of equality. The court identifies the pool, assesses each party’s contributions across the whole relationship, adjusts for future needs such as care of children and earning capacity, and then tests whether the overall result is just and equitable. Outcomes commonly fall somewhere between sixty-forty and equal, but the range is wide and driven by facts.
What happens if my former partner refuses to disclose their finances?
Disclosure is a continuing duty, not an option. If it is not met, your solicitor can issue formal disclosure requests, seek orders, subpoena records from banks, employers and accountants, and ask the court to draw inferences against the non-disclosing party. Costs orders are among the more likely consequences of persistent non-disclosure, and agreements have been set aside years later when concealed assets emerged.
Does a new partner affect child support or spousal maintenance?
A new partner’s income is not counted in the child support formula, which is based on both parents’ own incomes, a self-support amount, the costs of children, and each parent’s care percentage. Repartnering can affect spousal maintenance, because maintenance turns on need and capacity to pay, and remarriage generally ends an entitlement to spousal maintenance. Child support and maintenance are assessed separately.
Can we make our own agreement without lawyers?
You can agree anything privately, but an informal agreement is not enforceable and does not stop a later claim. To make it binding you need either consent orders approved by the court or a binding financial agreement with independent legal advice for each party. The cost of formalising an agreement you have already reached is usually a small fraction of the cost of a dispute about whether it existed.
Where to Start
Write down the date of separation before you do anything else, then build a single document listing every asset, liability and superannuation interest with approximate values. Those two things determine your deadlines and your negotiating position, and no solicitor can advise usefully without them. If children are involved, book family dispute resolution early rather than waiting for the dispute to harden, and keep a factual diary of care arrangements as they actually happen.
Then get advice specific to your state and your relationship type before you file anything, including a divorce application. For more on complex matters, see Navigating Complex Issues with Expert Family Lawyers, and browse further reading in our Family Law section.
This article is general information about Australian family law and is not legal advice. Obtain advice from a qualified solicitor in your state or territory about your own circumstances.
