Property settlement after divorce: is property division 50/50?

Property settlement and divorce deal with different questions

People often use “divorce settlement” to describe the whole financial separation. Legally, a divorce ends the marriage. A property settlement deals with how your property and debts will be dealt with after separation.

If you are separated but still married, you can start working through your finances now. You do not have to wait for the divorce application. Our separate divorce-timing guide, linked below, explains the distinction in more detail.

What is included in property division?

Start with the complete financial picture. Property is more than the family home, and the discussion is not limited to things held in joint names. Explain any company, trust or business structure to your lawyer so the relevant interests can be identified.

• The home, investment properties and other real estate.
• Savings, shares, vehicles and other significant assets.
• Business interests, including farming businesses, companies and trusts.
• Superannuation interests, which have their own rules.
• Mortgages, personal loans, credit cards and other liabilities.

Is a property settlement always a 50/50 split?

No. There is no fixed percentage that applies to every separation. Comparing your situation with a friend’s settlement can be misleading because the facts may be very different.

The current framework looks at four connected questions. They are useful when negotiating as well as when a court decides a dispute.

• What property and liabilities do you each have, and what are they worth?
• What did each person contribute financially, through other work, and through caring for the family?
• What are each person’s current and future circumstances, including health, earning capacity and care and housing needs?
• Is it just and equitable to change the property interests, and is the proposed result fair overall?

Contributions are about more than who earned the income

Wages and mortgage payments matter, but they are not the whole story. Looking after children, running the household and working on a property can also be relevant contributions. Explain what each person actually did, rather than relying only on whose name appears on an account.

The economic effect of family violence can also be relevant to contributions and current or future circumstances. The property-law changes that took effect on 10 June 2025 expressly address this. Raise concerns privately with your lawyer so their relevance and a safe approach can be considered.

Check the information before comparing offers

Financial disclosure means exchanging relevant financial information and documents. It is an ongoing duty, including before proceedings begin; it does not end when you send your first bank statement. An offer is difficult to assess if an asset, debt or source of income is missing.

Keep estimates separate from verified figures. If you disagree about a property or business value, ask whether an independent valuation is needed. Your lawyer can help identify the records required and the gaps to resolve before you commit to a proposal.

What happens to the home and mortgage?

Keeping the home is often a priority. The practical question is whether the proposed arrangement can be funded, including any payment to the other person and the remaining loan repayments. Discuss borrowing capacity with the lender or broker before treating a refinance as certain.

As a simple illustration, a home worth $800,000 with a $350,000 mortgage has $450,000 in equity before any relevant costs or adjustments. That calculation does not establish either person’s entitlement. Other assets, debts, superannuation and the legal assessment still need to be considered.

A workable proposal should address transfer or sale steps, lender requirements, payment dates and what happens if finance is not available. Ask for these practical issues to be resolved alongside the proposed division.

Does superannuation form part of a property settlement?

Superannuation needs to be considered, although a split is not required in every settlement. It is treated differently from money in a bank account. A superannuation split does not normally give you cash to use immediately; the funds remain subject to superannuation access rules.

Provide current fund details and ask how any proposed split would work. The fund trustee must receive notice of proposed splitting orders before the court makes them. Do not assume an informal agreement alone will transfer the interest.

How do you make the property division legally effective?

Reaching agreement on a figure is a useful step. You also need to consider how the agreement will be documented and carried out. The usual formal options are consent orders or a financial agreement, depending on the circumstances.

Consent orders are agreed terms submitted to the court for approval. They can be made without a hearing and, once made, are binding court orders. Financial agreements follow a different process, including requirements for independent legal advice.

If agreement is not possible, ask about financial negotiations or mediation and whether those options are suitable and safe in your circumstances. A conversation about settlement should also cover the cost of the next stage and what it is intended to achieve.

What are the time limits after divorce or separation?

For a marriage, an application for property adjustment generally must be started within 12 months after the divorce becomes final. For a de facto relationship, the general limit is two years after the relationship ends.

Starting proceedings outside those limits may require the court’s permission. Do not assume negotiations extend the deadline. Tell your lawyer the actual dates and provide any divorce order or existing financial agreement.

Property settlement advice in Ballarat

At Magpie Family Law, you work directly with Daniel Brownlie on property settlements, financial agreements, divorce and financial negotiations. The aim of the first conversation is to understand your position and identify a useful next step.

You do not need to prepare anything before calling. If you choose to proceed, our client portal helps organise the information and documents needed. You can start by explaining what matters most to you, what has already been agreed and whether anything is urgent.