Property settlement basics
The asset pool, the four-step process, why 95 percent of matters settle, and how to lock in a binding outcome.
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The asset pool, the four-step process, why 95 percent of matters settle, and how to lock in a binding outcome.
My settlement conference ran for nine hours. By hour seven I was eating a service-station sandwich in a corridor, listening to my solicitor explain why the offer on the table was better than what we'd get at trial. I signed at 8:47pm. The relief was instant. The grief came later, in the car.
Property settlement is where the money happens, where the resentment lives, and where most of the legal fees get incinerated. It's also the part most men understand the least going in. So let's strip it back to the bones.
The 'pool' is everything either of you owns, controls, or owes, regardless of whose name it's in. The court doesn't care that the house deed says only your name. It doesn't care that the super is in her name. It doesn't care that the company shares are held by a discretionary trust your dad set up. If it has economic value to either party, it's in the pool.
Typical inclusions:
Liabilities come off the pool: mortgages, credit cards, personal loans, tax debts, HECS, business loans you've personally guaranteed.
Add up the assets. Subtract the liabilities. That's the net pool. Don't get clever yet. Just write the number down.
Both parties have a duty of full and frank disclosure under the Family Law Rules. You exchange financial statements, bank records, tax returns, super statements, business accounts. Lying about it is contempt of court and can earn you costs orders, adverse inferences, and (in egregious cases) the entire pool reallocated against you.
If you've got crypto in a cold wallet your ex doesn't know about, disclose it. Forensic accountants are very good at finding what people hide. The legal industry has financial-only specialists who do nothing else.
Section 79 of the Family Law Act sets out a four-step approach the court applies to property settlement. Every solicitor in Australia uses it. Mediators use it. Judges use it. You should use it too.
Step 1: Identify and value the asset pool
Net assets, as above. Valuation date is usually the date of the hearing, not the date of separation. This matters enormously if asset values have moved (super balance up, house value down). The pool is a moving target until orders are made.
Step 2: Assess contributions
The court looks at financial contributions (income, inheritance, redundancy payouts), non-financial contributions (renovations, unpaid work in a family business), and homemaker/parenting contributions (caring for kids, running the household). Crucially, homemaker contributions are weighted equally to financial contributions. A breadwinner husband does not 'win' contributions just because he earned more.
The court typically expresses contributions as a percentage split. In a long marriage with kids, this often lands close to 50/50, with adjustments for things like a large inheritance, a pre-marriage asset, or a post-separation contribution.
Step 3: Assess future needs (s75(2) factors)
This is the adjustment lens. The court considers:
Future needs adjustments typically move the percentage by 5 to 15 percent. The party with primary care of younger kids and lower earning capacity usually gets the bump.
Step 4: Make a just and equitable order
The court takes the contribution percentage, applies the future-needs adjustment, and asks: is this actually fair in the round? It can adjust again. This step is where judicial discretion lives. It's also where settlement negotiations focus, because the percentage you'd get at trial is genuinely uncertain.
Around 95% of property matters resolve before a final hearing. There are three reasons.
First, cost. A contested trial routinely costs $80,000 to $150,000 per side. That's eaten directly out of the pool you're fighting over. Spend $200k to win an extra $50k and you've lost.
Second, time. Filing to final hearing in the FCFCA in 2026 typically takes 18 to 30 months. That's 18 to 30 months of life on hold, lawyers on retainer, and weekends spent reading affidavits.
Third, uncertainty. Two judges given the same facts can come to genuinely different orders. The 'percentage outcome' at trial is a range, not a number. Settling locks in a known result and lets you start rebuilding.
In rough order of cost and adversarial intensity:
Most matters land somewhere between mediation and solicitor-negotiated settlement. If you can do mediation honestly, do it. The savings are extraordinary.
Once you agree on a split, you need a legally binding instrument. Two options:
Don't shake hands and walk away. Without a court order or BFA, your ex can come back in 12 months and reopen everything.
Property settlement is arithmetic with feelings attached. The arithmetic is the easy part.
Know the pool. Know the steps. Settle smart.
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