This is a common question that I have been asked following a separation. Most people assume that all property acquired before and during the relationship will be split down the middle. The most common phrase used when judging how things should be dealt with is the dreaded ‘F’ word – ‘fair’. Although 50/50 is the common assumption, it is not always the case when it comes to a family law property settlement in Australia.
Family law is governed by the Family Law Act 1975 (Cth), (the Family Law Act).Under the Family Law Act, there is no automatic solution. There is no schedule at the back setting out the number of years together and the equivalent property settlement outcome. No two situations are identical, and the Court’s task is to reach an outcome that is ‘just and equitable’ in all the circumstances.
So how does it work?
It starts with the Asset Pool
Before the distribution percentages are discussed, the Court is first tasked with identifying the asset pool (sometimes called the ‘property pool’). This usually includes the former home, but it rarely stops there. The Court will look at all assets, including savings, investments, business interests and superannuation. Liabilities and financial resources are also considered. Items are not excluded simply because they are in the other party’s name.
For some families, this process can be relatively straightforward. For others it is complex due to the involvement of business entities, company and trust structures and other complex financial arrangements. Careful analysis is required at this stage to ensure that all relevant assets have been included in this initial step.
Contributions are broader than income
There is another common misconception at this stage that property following a separation is driven by who contributed the most financially during the relationship. In reality, the law recognises a range of contributions: financial and non-financial, as well as a party’s contributions made as a homemaker and parent 1 . These contributions are considered in the acquisition, conservation and improvement of the assets of the relationship.
It is at this point that the water gets a bit muddy. In longer relationships, contributions are often viewed as having equal weight where roles were divided along more traditional lines. This does not mean that the property distribution in long relationships is automatically equal. Again, careful analysis at this stage requires the parties to consider contributions beyond salary and financial contributions.
Future needs matter
What does life look like after separation? This future-looking exercise is also required. If one party has primary care of children, reduced earning capacity, health concerns or other factors that may affect their financial independence, a further adjustment may be required in their favour. The practical reality of the separation is considered at this stage – beyond what was initially contributed and focusing instead on the future needs of the parties moving forward.
Is the outcome ‘just and equitable’?
Finally, the Court must be satisfied that the end result, proposed property division – is ‘just and equitable’ in the circumstances This overarching requirement looks at the entire picture and reinforces that property settlements are discretionary and unique to each family’s circumstances. There is no automatic formula and what may be the outcome for one family may not be your outcome.
So, is it ever equal?
In longer relationships with comparable earning capacity and no significant disparity in future needs, an equal division may be appropriate. But many matters are not so symmetrical. The expectation of a 50/50 division can create unrealistic expectations and make the negotiation process harder
How KPA Family Lawyers can assist
Property matters are rarely about a single percentage. They involve understanding the full financial landscape, assessing risk with clarity, and structuring outcomes that are both legally sound and commercially sensible. Our family lawyer Hazel Ondari can assess your specific situation and advise you on the best way forward.
Early advice helps you:
Understand the true asset position (including companies, trusts and SMSF division).
Clarify likely outcome ranges, rather than fixating on “50/50”.
Avoid assumptions that may fuel conflict, particularly around family law financial separation agreements and expectations of binding financial agreements.
Pursue negotiated solutions and consent orders before Court becomes necessary.
At KPA Lawyers, we approach property settlements with careful strategy and practical focus. Each matter is different, and the advice should reflect that.
References
- Mallett v Mallett (1984) 156 CLR 605.
- Stanford v Stanford (2012) 247 CLR 108; Bevan v Bevan (2013) FLC 93‑545; Family Law Act 1975
(Cth) ss 75(2),s79(4), 90SF(3), 90SM(4).
