Why informal arrangements are risky
Many separating couples divide their assets informally. They transfer the house, split the savings, and move on, assuming the matter is settled. Without a formal agreement, it is not.
Without Consent Orders or a Binding Financial Agreement in place, either party retains the legal right to make a property settlement claim in the future, potentially years later, after you have rebuilt your finances or accumulated new assets. The informal arrangement provides no legal protection.
Time limits apply
Married couples must apply for property orders within 12 months of a divorce becoming final. De facto couples must apply within two years of the end of the relationship. After these limits, court permission is required and is not guaranteed.
The four-step framework, now codified in legislation
There is no automatic 50/50 split in Australian family law. From 10 June 2025, the Family Law Amendment Act 2024 wrote the established four-step framework directly into the Family Law Act, in sections 79 (for married couples) and 90SM (for de facto couples). What was previously judge-made common law is now legislation.
The framework applies to all separating couples, whether their settlement is decided by a court or negotiated privately, and the same logic governs FDR conversations about property and finance.
Identify and value the asset pool
All assets, liabilities, and financial resources of both parties. Real property, superannuation, investments, bank accounts, business interests, vehicles, and debts, whether held jointly, solely, in Australia, or overseas. Full and frank disclosure of every asset and liability is a statutory obligation.
Assess contributions
Both financial and non-financial contributions. Income earned, property brought in, inheritances received, homemaking, caring for children, and supporting the other party's career. Where family violence has affected one party's ability to make contributions, the court can now take that into account explicitly.
Consider current and future circumstances
Previously called "future needs," this step now uses updated language under the amended Act. It covers earning capacity, age, health, care responsibilities for children, the housing needs of any children, and the long-term financial impact of the relationship and any family violence on each party's career or earning potential.
Decide whether it is just and equitable to alter property interests
A final check. The court is not required to make an order simply because parties are before it. Orders are only made if it would be just and equitable to alter the existing property interests, which prevents outcomes that are technically supported by the formula but genuinely unfair in context.
Wastage of property
The Act now expressly allows the court to consider any significant or material wastage of property or financial resources caused intentionally or recklessly by a party. Gambling losses, dissipation of assets after separation, and deliberate destruction of value can all be brought into the contributions assessment. This was previously addressed through case law and is now written into the legislation.
Family violence in financial settlements
One of the most significant changes under the 2024 Act is the explicit role of family violence in property and financial matters. The principles set out in Kennon v Kennon, which recognised the economic effect of family violence on a party's ability to contribute and on their future circumstances, are now codified into the Family Law Act.
The Act also expanded the definition of family violence in section 4AB to more clearly recognise economic or financial abuse, including:
- Unreasonably denying a partner financial autonomy
- Unreasonably withholding financial support
- Coercing a partner into taking on debt or incurring debt in their name
- Dowry-related abuse
- Controlling a partner's access to employment, income, or financial assets
Where these patterns are present, they are no longer peripheral to a property settlement. They sit at the centre of the contributions assessment and the assessment of current and future circumstances. They are also a consideration in spousal maintenance applications.
If family violence is part of your situation
FDR is not appropriate in every case involving family violence, and a careful screening conversation comes first. Where FDR can proceed safely, shuttle mediation through separate Google Meet breakout rooms, additional safety arrangements, and other process adjustments are available. Where it cannot proceed safely, you will be advised accordingly.
Your duty of full and frank disclosure
Before the 2024 amendments, the duty of full and frank financial disclosure sat in the Federal Circuit and Family Court Rules. From 10 June 2025, it is written into the Family Law Act itself, in sections 71B (married couples) and 90RI (de facto couples).
The duty begins the moment a party is preparing to start property or financial proceedings, not when proceedings are filed. It continues until the matter is finally resolved. It covers all relevant information and documents: bank statements, tax returns, payslips, business records, superannuation statements, and details of any trusts or companies.
Non-compliance has real consequences. The court can take non-disclosure into account when dividing property, make costs orders against the non-disclosing party, stay or dismiss proceedings, or in extreme cases find a party in contempt.
FDR practitioner obligation
The same amendments place a new obligation on FDR practitioners to inform parties of their duty of disclosure, explain when the duty applies, set out the potential consequences of non-compliance, and encourage compliance. This is built into our intake and pre-mediation process. You will be given clear written information about disclosure before any financial mediation begins, including the Full and Frank Disclosure worksheet to complete before your first joint financial session.
Full and Frank Disclosure worksheet
The practical preparation document for financial FDR. Plain-English explanation of your statutory duty, a structured worksheet covering every category of income, asset, liability, superannuation, and financial resource, and a supporting-documents checklist. Each party completes their own copy before the joint session.
How superannuation is treated in a settlement
Superannuation is treated as property under the Family Law Act and can be divided as part of a financial settlement. A superannuation split does not involve early withdrawal. Instead, part of one party's superannuation interest is transferred to the other party's fund, remaining preserved until retirement.
Key things to understand about superannuation splitting
Requires a formal agreement or order
Superannuation cannot be split informally. A splitting agreement or court order must be in place and the fund trustee must be notified.
Defined benefit funds are more complex
Public sector defined benefit schemes require specialist valuation and different procedural steps. Seek advice before agreeing to split these.
Super and the rest of the asset pool interact
The superannuation split does not have to mirror the overall property split. What matters is that the overall settlement, viewed holistically, is just and equitable.
De facto relationships
De facto couples have substantially the same property settlement rights as married couples. The same four-step framework applies, mirrored in section 90SM of the Family Law Act. A de facto relationship is covered by the Act if it lasted at least two years, the couple has a child together, or one party made substantial contributions.
Time limit for de facto couples
De facto couples must apply within two years of the end of the relationship. This is shorter than the limit for married couples and is a common source of missed claims.
Spousal maintenance
Spousal maintenance is a separate but related question to property division. It is financial support paid by one former partner to the other where one party cannot adequately support themselves and the other has the capacity to pay. It can be ordered as periodic payments, a lump sum, or both.
The 2024 Act updated the factors the court considers under sections 75(2) and 90SF(3). The renamed list of "considerations relating to current and future circumstances" now explicitly includes the effect of any family violence one party has subjected or exposed the other to, alongside the established considerations of age, health, earning capacity, care of children, and the standard of living that is reasonable in the circumstances.
Spousal maintenance can be addressed in the same FDR conversation as property division, or as a standalone issue. It can be formalised through Consent Orders or a Binding Financial Agreement.
Consent Orders versus Binding Financial Agreements
Consent Orders
A financial agreement submitted to the court for approval. Legally binding once approved by a registrar. Does not require a hearing. For most post-separation financial settlements, this is the more straightforward and reliably enforceable path.
Recommended for mostBinding Financial Agreements (BFAs)
A private contract that does not involve the court, but requires both parties to obtain independent legal advice before signing, and their lawyers must certify that advice was given. More involved to prepare than Consent Orders, and more vulnerable to being set aside if a court later finds the agreement was unjust or that proper advice was not given.
More complex, narrower use caseBFAs: a note
BFAs have their place, particularly for protecting pre-relationship assets or for second relationships. For most post-separation financial settlements, Consent Orders are simpler and more reliably enforceable. The right choice depends on the structure of the asset pool and the goals of both parties, and is a conversation worth having before drafting anything.
Companion animals
The 2024 Act introduced a new framework for dealing with family pets in property settlements. A "companion animal" is now a specific category of property: an animal kept primarily for companionship, excluding assistance animals, working animals, and animals used for business purposes.
The court can order sole ownership to one party, transfer to a third party with consent, or sale. The court considers caregiving history, the financial cost of providing for the animal, any history of family violence or animal abuse, the attachment of each party and any children to the animal, and the willingness and ability of each party to care for it. The court cannot order shared ownership or shared care of a companion animal.
Before applying to court
Going to court is not the first step. Schedule 1 Part 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 sets out pre-action procedures that parties must follow before filing a financial application. The intent is that parties make a genuine attempt to resolve the dispute first.
The procedures include making a genuine attempt at dispute resolution, exchanging documents relevant to the duty of disclosure, giving the other party written notice of any intention to start proceedings, and only filing if reasonable attempts to settle have been exhausted.
The Genuine Steps Certificate
A Genuine Steps Certificate is the document the court uses to confirm that a party has complied with the pre-action procedures. It is signed by the party themselves, not by a lawyer and not by a mediator. The Applicant completes Parts A, B, and D of the prescribed form; a Respondent completes Parts A, C, and D. Each party signs a Statement of Truth confirming that the contents are accurate. The certificate is filed alongside the Initiating Application or Response to Initiating Application. Where a party is legally represented, the lawyer typically files the certificate as part of the wider application package, but the certifying signature remains the party's.
Where pre-action procedures have not been followed, the certificate is used to set out the basis for an exemption (for example, family violence, urgency, or where a party would be unduly prejudiced by following the procedures). The court may stay proceedings, impose costs, or draw adverse inferences against a party who has not made a genuine attempt to resolve the dispute.
How FDR supports your Genuine Steps Certificate
Where financial FDR is attempted, the practitioner provides a Letter of Attendance and Genuine Effort at the conclusion of the process. The letter confirms the dates of attendance, the practitioner's assessment of whether each party made a genuine effort, and the outcome. The letter is not a court-issued document. It is supporting evidence that a party can attach to or refer to in their own Genuine Steps Certificate.
Time limits
"Property and financial settlements run on a clock. The framework is now in legislation, the disclosure duty is statutory, and the time limits are strict. Getting it right, in writing, is the work."