Updated 4 November 2026
CM Law’s Ultimate 50 Things You Need to Know About Property Settlement During Divorce #1.
Explore CM Law’s guide to property settlement during divorce.
The first stage of a property settlement is about understanding your position before making commitments. Identify urgent needs, assemble reliable financial information and obtain advice about the process. A clear picture of the assets, debts and practical options helps you negotiate a settlement that can actually be carried out.
What should you do first?
Start by identifying immediate safety, housing and financial needs, then arrange legal advice before promising a particular division. Prepare a short timeline of the relationship and separation, list urgent bills and locate existing agreements or orders. Your first meeting should establish priorities, deadlines and the information still needed.
My practical advice is to bring questions as well as documents. Explain whether a sale, refinance, withdrawal or business decision is imminent. Those facts help determine what needs attention now and what can be investigated methodically.
Do you have to wait until divorce?
No. Property settlement and divorce are separate processes, and married couples can address property after separation without first obtaining a divorce. Usually, a court application must be made within twelve months after divorce becomes final. For de facto property claims, the usual deadline is two years after relationship breakdown.
The Court’s property overview explains these limits. Permission to apply late is not automatic, and negotiations do not stop a deadline. Tell your lawyer about any divorce order, disputed separation date, overseas connection or existing financial agreement.
How does the current law approach property division?
The Family Law Act 1975 requires consideration of existing property interests and liabilities, each person’s contributions, and their current and future circumstances. Any property adjustment must be just and equitable. The framework clarified from 10 June 2025 does not create an automatic equal division or a fixed percentage calculator.
For NSW couples, these disputes are generally dealt with in the Federal Circuit and Family Court of Australia. Legal advice should explain a reasoned range of outcomes and the evidence affecting it, rather than promise a particular result.
Which assets and debts should go on your list?
List property and liabilities held separately or jointly, including homes, savings, investments, vehicles, businesses, superannuation, loans and credit cards. Include overseas interests and relevant trust or company arrangements. Do not leave something out merely because it is in one person’s name or was acquired before the relationship.
Record ownership, approximate value, outstanding debt and supporting documents for each item. Include gifts, inheritances and post-separation acquisitions for assessment. Listing an item does not decide how it will ultimately be treated or divided.
Which documents should you collect?
Gather bank and loan statements, tax returns, payslips, superannuation statements, property records and documents for businesses or trusts. Also locate evidence of significant gifts, inheritances, asset sales and debts. Organise copies by category and date so gaps can be identified and financial information checked efficiently.
Keep documents you can lawfully access, including relevant electronic records. Do not access your former partner’s private accounts without authority. If information is missing or controlled by someone else, your lawyer can explain appropriate disclosure requests and court processes.
What does financial disclosure require?
You must provide full and frank disclosure of relevant financial circumstances, including indirect interests and resources. The duty applies while preparing for property proceedings and continues until the matter is resolved. It is not satisfied by exchanging a few selected statements or only disclosing assets that the other person already knows about.
The Court’s disclosure guide explains the obligation, now expressly in the Act. Update information when circumstances change. Concealment can affect the outcome and lead to costs or other sanctions; uncertainty should be explained and investigated, not omitted.
How should you establish reliable values?
Identify which values can be agreed and which need independent expert assessment. A market appraisal, an insurance replacement figure and a formal valuation serve different purposes. Property, business and complex financial interests may require different expertise. Use a consistent, current financial schedule and record the basis of each figure.
The government property guide provides practical preparation steps. Discuss jointly instructing a suitable expert where appropriate. Allow for market movements and updated balances before finalising terms; a figure recorded at separation is not automatically the final settlement value.
Why must superannuation be considered early?
Superannuation can be a substantial part of the overall financial position even though it is not immediately available cash. Obtain information about each fund and seek advice on valuation and possible splitting. A split is not mandatory, and different types of superannuation interests can require different treatment.
Superannuation splitting generally preserves the money within the superannuation system. The fund trustee must receive procedural fairness before a splitting order is made. Avoid trading retirement benefits against home equity without understanding their different accessibility, value and implementation requirements.
How should you manage bills while negotiations continue?
Prepare an interim budget covering housing, loan repayments, utilities, insurance and children’s expenses. Discuss workable temporary arrangements and record payments. Separation does not itself remove a borrower’s obligations to a lender, and an agreement between former partners does not necessarily release either person from a joint debt.
The separating with debt guide explains why lender arrangements matter. Contact creditors early if payments are becoming unaffordable. Keep interim support and expense arrangements distinct from a final property division, and seek separate advice about maintenance or child support where needed.
What if assets may be sold or money withdrawn?
Get prompt legal advice if there is a credible risk that assets will be transferred, dissipated or placed beyond reach. Depending on the evidence, urgent court orders may be available. Do not assume separation automatically freezes accounts or prevents a registered owner from dealing with property.
Preserve relevant statements and communications and explain what action is threatened and when. The Court’s urgent application process requires evidence. Emptying accounts or transferring assets yourself can create further problems; discuss proportionate protective steps with your lawyer.
How do you record contributions and future circumstances?
Prepare a factual timeline of financial and non-financial contributions, including paid work, homemaking, parenting, renovations and business involvement. Also record current income, health, earning capacity and children’s care and housing needs. The assessment considers the whole relationship and relevant circumstances, not simply whose salary paid the mortgage.
Use records where available and explain gaps honestly. Identify practical outcomes you could sustain, such as retaining a home only if refinancing is achievable. Your future budget helps test a proposal alongside the legal assessment, without determining entitlement by itself.
Does family violence affect the first steps?
Yes. Tell your lawyer about safety concerns, coercive control or financial abuse so communication and negotiations can be planned appropriately. Under the changes commencing in June 2025, the economic effect of family violence must be considered where relevant to contributions and current or future circumstances.
Explain practical financial effects, such as restricted employment, coerced debts or continuing treatment costs. These provisions do not create an automatic compensation payment. Safe disclosure arrangements and urgent protection may be needed before ordinary settlement discussions can proceed.
Must you try to resolve the dispute before filing?
Usually, prospective parties must take genuine steps to resolve a property dispute before commencing proceedings. These include financial disclosure, considering safe dispute resolution and setting out issues and proposals. Exemptions can apply, including urgency or family violence. A property-only application does not require the parenting section 60I certificate.
The property pre-action procedures explain the requirements. Mediation works best with reliable information and realistic proposals. Ask about the cost of unresolved issues and appropriate alternatives; do not continue an unsafe process merely to demonstrate willingness to negotiate.
What does a real case show about identifying assets?
In Kennon v Spry [2008] HCA 56, the High Court dismissed appeals challenging property orders involving a discretionary trust. The decision shows why an initial financial investigation must consider trust documents, powers and transactions, rather than assume assets held through a trust are beyond a property settlement.
The husband had established a trust before the marriage. Later changes excluded the wife from capital benefits, and trust assets were distributed to trusts for their children. The trial court set aside relevant changes and dispositions and ordered the husband to pay the wife $2,182,302. The High Court upheld the result.
The reasoning depended on the particular trust arrangements and the parties’ rights and powers. It does not make every family trust asset automatically divisible. The case predates the 2025 reforms; its practical lesson is to obtain the documents and investigate the legal position before negotiating.
How do you turn an agreement into a workable settlement?
Obtain advice about formalising agreed terms through consent orders or a compliant financial agreement. Before committing, check the proposed transfers, refinancing, tax consequences, superannuation steps and deadlines. A workable settlement must address implementation as well as the division itself, including what happens if a planned refinance or sale cannot proceed.
CM Lawyers’ property settlement team can help organise the process and assess your options. Contact us on (02) 9557 9000 or at lawyers@cmlaw.com.au. Bring your financial schedule, available records and urgent questions to the first discussion.
General information only, current at 4 November 2026. Obtain advice for your circumstances. The cited case is a real decision and its outcome depends on its facts and the law then applicable.
Key resources
Family Law Act 1975 — property, disclosure and financial proceedings.
FCFCOA: financial or property overview — jurisdiction, time limits and decision-making.
Attorney-General’s Department: 2025 property changes — current framework and family violence.
FCFCOA: duty of disclosure — relevant records and continuing obligations.
FCFCOA: property pre-action procedures — genuine steps and exemptions.
FCFCOA: superannuation — splitting and trustee requirements.
Government guide to dividing property and finances — preparing and implementing a settlement.
Government guide to separating with debt — creditor and debt considerations.
FCFCOA: urgent financial applications — evidence and urgent orders.
Kennon v Spry [2008] HCA 56 — official High Court reasons.
