A property developer on the Gold Coast built a business worth about forty million dollars. When his marriage of twenty nine years ended, he argued that his ingenuity and his stewardship of that business meant he should keep most of it. A trial judge agreed and gave him sixty per cent. On appeal, the Full Court disagreed, divided the property equally, and refused his push for an even larger share.
That case, Fields & Smith [2015] FamCAFC 57, is one of the clearest answers Australian law gives to a question many higher earners ask after separation: if I made the money, or built the business, do I get a bigger share of the property? This post explains why the answer is usually no, where that leaves the idea of a 50/50 split, and the one situation, family violence, where the effect on a person's capacity to earn can genuinely move the outcome.
Does the person who earned the money get a bigger share?
No, not for that reason on its own. Australian law does not reward the higher earner with a larger share of the property simply because their name was on the pay slips or the business. When a court divides property after separation, it weighs everything each person contributed, and it does not treat earning an income as more valuable than raising children or running the home.
The power to divide property sits in section 79 of the Family Law Act 1975 for married couples, and in section 90SM for de facto couples, which mirrors it almost word for word. Since the Family Law Amendment Act 2024 came into force on 10 June 2025, the steps a court follows are written directly into the Act: identify the property pool, assess each person's contributions, consider each person's current and future circumstances, and check that the overall division is just and equitable under section 79(2). Nowhere in that process is the breadwinner given a head start.
No contribution is treated as worth more than another
The starting point is that financial and non-financial contributions are weighed side by side, without one being ranked above the other. Section 79(4) asks a court to look at direct financial contributions, indirect financial contributions, and contributions to the welfare of the family, including as a homemaker or parent. It does not put them in order.
This has been the position at the highest level for a long time. In Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, the High Court said the contribution of a homemaker and parent should be recognised not in a token way but in a substantial way. It rejected the idea that the person who earned the money had automatically made the more important contribution. The reason is practical as much as principled. Often the only reason one partner could work long hours or build a business was that the other was holding the home and the children together. One role makes the other possible.
What "special contributions" was, and why it is gone
For years, some wealthy spouses ran an argument known as special contributions. The claim was that a particular flair, skill, or stewardship in creating wealth was so exceptional that it deserved extra weight, and so a bigger share. For a time it worked in some big money cases.
It no longer does. In Hoffman & Hoffman [2014] FamCAFC 92, the Full Court dealt with a husband who had sought a seventy to thirty split of a pool of about ten million dollars after thirty six years together, on the basis of his special skills and entrepreneurial flair in property. The Full Court dismissed his appeal and upheld an equal division, holding that there is no binding rule of law that makes financial contributions more important, or special, than contributions to the home and family. It endorsed an earlier judge's blunt description of the whole idea as a terrible mistake.
The following year, Fields & Smith confirmed that this applies just as much to large fortunes. The wealth in that case had been built through one spouse's business, yet the Full Court still found the parties' contributions were equal and divided the property in half. The lesson is that being the wealth creator, even a very successful one, does not buy a larger share. The court values what each person did, in their own role, across a long relationship.
There is still no automatic 50/50
None of this means property is always split down the middle. The same Mallet decision that rejected any automatic advantage for the breadwinner also rejected the opposite idea, that equality is a fixed starting point. Each case turns on its own facts.
Contributions can be found to be unequal for reasons that have nothing to do with who earned more. A short relationship gives less time for contributions to even out. A large sum brought in at the start by one person, an inheritance, or a significant gift can weigh in that person's favour. So can substantial contributions made by one person after separation. The point is not that earning more counts for more. It is that a court looks closely at the whole history of contributions, and sometimes that history is genuinely lopsided.
Where family violence changes the picture: the effect on capacity to earn
There is one area where conduct during the relationship can move the outcome, and it is worth understanding precisely, because it is easy to get wrong. Since 10 June 2025, a court must consider the effect of family violence when it divides property. The key word is effect. It is not the existence of family violence that shifts a settlement. It is the demonstrated consequence of that violence, shown by evidence.
One of the most important consequences the law now looks at is what family violence did to a person's capacity to earn. The link has to be drawn as a chain, not asserted as a label. Family violence that stopped someone from working or studying, that controlled their access to money and their career, or that left lasting harm to their health and confidence, can reduce what they are able to earn both now and into the future. Under section 79(5)(a) of the Family Law Act 1975, the effect of family violence on the other person's current and future circumstances, including their earning capacity, is a required consideration. A person whose ability to support themselves has been damaged in this way may receive an adjustment that reflects it.
The same conduct can also matter earlier in the process. Section 79(4)(ca) allows a court to take family violence into account when it assesses contributions, where the violence made one person's contributions significantly harder, or held back their ability to contribute at all. This is the principle from Kennon and Kennon (1997) FLC 92-757, now written into the Act. For de facto couples, sections 90SM(5)(a) and 90SM(4)(ca) do the same work.
The distinction that matters is the one the law itself draws. Proving that violence happened is not enough on its own. What counts is the causal link: that the violence reduced this person's capacity to earn, and by how much, supported by a clear record. That reduced earning capacity is also central to any claim for spousal maintenance, and the effect of family violence on a settlement is explored in more detail in our post on family violence and property settlement.
Why this is better settled by agreement than argument
Arguments about whose contribution mattered more are among the most painful a separating couple can have, and, as the case law shows, the higher earner usually cannot win a bigger share by making them. That makes this exactly the kind of dispute that is often better resolved by agreement than fought out.
In Family Dispute Resolution, the practitioner assigned to your matter does not decide who contributed more or impose a split. The role is to help each person shape and test the proposals they put to each other, and, where it helps, to explain in general terms how a court tends to approach contributions so each person can weigh their position realistically. The online shuttle model keeps each party in a separate private room, so a difficult conversation about money never has to happen face to face. Nothing is binding until it is written up as Consent Orders or a Binding Financial Agreement. Where family violence makes mediation unsafe or unsuitable, a matter can go to court instead, and that is sometimes the right path.
Common questions
Does the higher earner get more in an Australian divorce?
No, not because they earned more. A court weighs financial and non-financial contributions together and does not treat earning an income as worth more than homemaking or parenting. Being the main earner, or even building the family's wealth, does not by itself entitle you to a larger share.
Is the property always split 50/50?
No. There is no automatic equal split and no rule that requires one. Contributions can be assessed as unequal because of a short relationship, a large initial contribution, an inheritance, or significant contributions made after separation. Equality is a common outcome in long relationships, but it is a finding on the facts, not a starting rule.
Do I get less because I stayed home with the children?
No. The law treats homemaking and parenting as genuine contributions, to be recognised in a substantial way rather than a token one. Across a long relationship, the contributions of a stay at home parent are often assessed as equal to those of the earning partner, because each role made the other possible.
Can family violence change how much of the property I get?
It can, but only where its effect is shown. Since 10 June 2025 a court must consider the effect of family violence, including on a person's capacity to earn now and in future. It is the demonstrated effect, supported by evidence, that can lead to an adjustment, not the fact that violence occurred on its own.
If you or someone you know is affected by family violence, coercive control, or financial abuse, please visit our Get Help page for crisis support services and pathways to safety.
This article is general information only and was correct to the best of our knowledge at the time of writing. It is not legal, tax, or financial advice and does not take account of your personal situation. The law changes, some measures mentioned may be proposals that are not yet in force, and fees and figures can change over time, so check anything that matters and get advice for your own circumstances from a family lawyer, an accredited Family Dispute Resolution Practitioner, or a qualified tax or financial professional before acting. If you or someone else is in immediate danger, call 000. For confidential support with family violence or concerns about a child's safety, contact 1800RESPECT on 1800 737 732.