A property settlement is the formal division of property following a couples separation and the determination on what constitutes the marital assets is an important first step.

Marriage Assets

Marital assets are the total value of the assets that arise out of the marital or de facto relationship and can include anything of value such as real estate, cars, savings, shares, inheritances, compensations, redundancy packages, lottery wins, jewellery and other property real/ and or personal. Superannuation benefits are also included in the pool of assets.

It will include marriage assets that are in either party’s name, in both party’s names and all assets that are under either party’s control.

If you and your former spouse cannot agree on how to divide these marital assets, including inheritance you have received, you will normally need to attend family dispute resolution before Court proceedings can take place. Coming to an agreement before going to the Family Court is the best way to minimise the emotional and financial stress involved.

The law that governs the division of the property pool is the Family Law Act 1975 (Cth).

If you can come to an agreement

If you and your partner are unable to come to an agreement on how to divide the marital assets then you can apply for property orders through the Family Courts. In Australia, there is no set formula for how a judge will decide to divide the assets. they will decide what is just and equitable when all the evidence and unique facts about your case have been heard.

There a number of factors that they will take into consideration however:

  • The amount of financial contributions to the marriage made by each party, both direct and indirect.
  • The responsibilities that each party had for things like childcare and homemaking.
  • The future needs of each party, including age, health, and financial resources.
  • If there is an inheritance involved that was of particular sentimental importance to one party.

The usual division of assets

Interestingly, the majority of property settlements usually result in a division of 55-65% in favour of the economically weaker partner which is historically the wife. Keep in mind though that every outcome of a property settlement depends on your particular circumstances, and the financial order that you receive from the Court will always depend on your unique circumstances.

If you are worried about where you stand in a property division or to find out what steps to take next call into our office and talk to a family law expert at Dawson & Gardiner. Phone: 02 4954 8666.


As with all areas of Family and De Facto Law, each matter is unique to those involved and everyone’s circumstances will be different. If you have further questions about this subject, please contact our Family lawyers at Dawson & Gardiner on 02 4954 8666