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.
What counts as the asset pool
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:
- Real estate (family home, investment properties, holiday house)
- Superannuation balances (both of you, every fund)
- Bank accounts and term deposits
- Vehicles, boats, motorcycles
- Shares, ETFs, managed funds, crypto holdings
- Business interests and goodwill
- Inheritances received during the marriage (treated case-by-case)
- Personal injury settlements (sometimes excluded, sometimes not)
- Furniture and household contents (usually a single negotiated figure)
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.
Why hiding assets is a bad idea
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.
The four-step process
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:
- Age and health of each party
- Income, property, and financial resources
- Care of children under 18
- Earning capacity (and what it'll take to rebuild it)
- Length of the marriage
- A standard of living that's reasonable
- Any new relationship and its financial impact
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.
Why most settle out of court
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.
The settlement options ladder
In rough order of cost and adversarial intensity:
- Kitchen-table agreement (you and her, written down)
- Mediated agreement (private mediator or Family Relationship Centre)
- Collaborative law (both sides retain collaborative-trained solicitors)
- Solicitor-negotiated settlement (letters between firms)
- Conciliation conference (court-ordered, free)
- Arbitration (private, binding)
- Trial
Most matters land somewhere between mediation and solicitor-negotiated settlement. If you can do mediation honestly, do it. The savings are extraordinary.
Locking it in: consent orders or BFA
Once you agree on a split, you need a legally binding instrument. Two options:
- Consent orders: Form 11 plus an Annexure A drafted by a solicitor, filed with the court. Around $200 filing fee. Binding, enforceable, and crucially, gives you the stamp duty exemption on property transfers and the CGT rollover relief on shares and investment properties.
- Binding Financial Agreement (BFA): a contract under s90C, signed with independent legal advice on both sides. More flexible, more vulnerable to being set aside if the formal requirements aren't met perfectly.
Don't shake hands and walk away. Without a court order or BFA, your ex can come back in 12 months and reopen everything.
The mistakes that cost the most
- Not disclosing fully (instant credibility loss)
- Letting emotions drive litigation (each escalation costs $5k-$20k)
- Trying to 'win' the family home when you can't service the mortgage solo
- Forgetting super splits exist (s90XT) and walking away from cash 'in exchange'
- Signing a BFA without proper advice
Property settlement is arithmetic with feelings attached. The arithmetic is the easy part.
Know the pool. Know the steps. Settle smart.
Further watching
- 01The pool includes everything both parties own or control, regardless of legal title.
- 02Section 79 follows four steps: pool, contributions, future needs, just and equitable.
- 03Homemaker contributions weigh equally with financial contributions in long marriages.
- 04Trial costs $80k-$150k per side and takes 18-30 months from filing.
- 05Lock the deal in via consent orders or a properly executed binding financial agreement.
The property pool for settlement includes: