When a couple separates after a marriage or de facto relationship, one of the major issues to work through is how to divide property and finances.

This is called a “property settlement”. I’ve put together what you need to know about dividing property after separation in Western Australia.

Dividing Property After Separation

As a family mediator, my role is to help you understand the general framework and support you to reach your own agreement wherever possible. This is general guidance only, not legal advice.

1. How property settlement works in Australia

In Australia, property settlements are mainly governed by:

• Family Law Act 1975 (Cth), and
• Family Law Amendment Act 2024 (Cth)

In Western Australia de facto couples are covered by the Family Court Act 1995 (WA), which operates in a similar way for property division.

Many think that after separation your property is just split 50/50. That is not how the law works. There is no fixed formula. Instead, the law requires an outcome that is “just and equitable” – in other words, fair in the circumstances of each particular relationship.

If you and your former partner cannot agree, the Family Court of WA can make orders dividing your property.

2. What is “property”?

“Property” in family law is a broad concept. It includes all assets, liabilities and financial resources of both parties – sometimes called the “property pool”.

Common items in the property pool include:

Assets

• The family home and any other real estate
• Bank accounts, cash and savings
• Investments (shares, managed funds, bonds, crypto, gold)
• Businesses or business interests
• Vehicles, boats, caravans
• Jewellery and other valuables
• Superannuation
• Interests in family trusts

Liabilities

• Mortgages
• Personal loans and debts
• Credit cards
• Tax debts and other financial obligations

Property can be in one person’s name, joint names, or held through a company, trust or another party. The Court looks at what exists in reality, not just whose name is on the title or account.

3. Resolving property matters without going to Court

Most couples can resolve property issues without a Court hearing. Doing so usually saves time, money and stress.

Common pathways are:

• Direct negotiation between the parties
• Mediation or family dispute resolution (with a neutral mediator)
• Negotiation through lawyers

If you reach an agreement, it is important to consider how you will record and formalise it.

4. Ways to formalise an agreement

An informal agreement (for example, a verbal understanding or a handwritten list) is not legally enforceable. To protect both parties and provide finality, there are two main formal options:

1. Binding Financial Agreement (BFA)

1. A private written agreement about how property will be divided.
2. Each party must obtain independent legal advice before signing.
3. Strict legal requirements apply, otherwise the BFA may not be legally binding.

2. Consent Orders

1. A written agreement between parties setting out how property will be divided.
2. Filed with the Family Court of WA for approval.
3. If the Court finds the agreement just and equitable, it will make orders in those terms.
4. Once made, consent orders are legally binding and enforceable.

If no agreement can be reached, either party may apply to the Court to decide the property settlement.

5. Time limits for starting Court proceedings

There are legislated time limits if you want the Court to make property orders:

• Married couples:
  Applications should be made within 12 months of a divorce becoming final or a decree of nullity (annulment).
• De facto couples:
  Applications should be made within 2 years of the relationship breakdown (separation).

It is possible to apply outside these limits, but you must get permission (“leave”) from the Court and this is not always granted.

6. How the Court decides what is “just and equitable”

When it comes to dividing property after separation, the Court does not start from a 50/50 split and adjust. Instead, it works through several steps, guided by the relevant laws (for example, sections 79 and 75(2) of the Family Law Act 1975 for married couples and sections 90SM and 90SF of the Family Court Act 1995 (WA) for de facto couples).

Key considerations include:

a. Identifying the property pool

The Court first identifies all assets, liabilities and financial resources of both parties, however held. This can include:

• Real estate
• Bank accounts and investments
• Businesses and vehicles
• Superannuation
• Debts (mortgages, loans, credit cards, tax debts)

The aim is to determine the net value of the property pool.

b. Assessing contributions

The Court then looks at what each person contributed to the relationship and to the property pool, including:

Financial contributions

• Income earned and used for the family
• Property or savings brought into the relationship
• Mortgage payments and other payments towards assets
• Money used to acquire, improve or maintain property

Indirect financial contributions

• Financial help from family members (such as gifts, loans, or inheritances)
• Support that allowed one party to build assets or a business

Non‑financial contributions

• Renovating or maintaining the home
• Managing investments or a business
• Work done in a family business or on family assets

Contributions to the welfare of the family

• Caring for children
• Running the household
• Supporting the other party’s career or education

Australian family law recognises that unpaid care and domestic work can be as significant as paid work. Both financial and non-financial contributions are considered and are often given equal weight. Where one party brought in substantially more assets at the start or made disproportionately greater contributions, this may affect the final division.

c. The impact of family violence

Recent reforms (Family Law Amendment Act 2024) make it clearer that the Court can consider the economic impact of family violence, including financial and economic abuse.

If violence or controlling behaviour affected a party’s ability to work, study, build assets or otherwise contribute, the Court may take that into account when deciding what is fair.

d. Future needs of each party

The Court then considers each person’s likely future circumstances, such as:

• Age and state of health
• Income, qualifications and earning capacity
• Other financial resources
• Care of children and parenting responsibilities
• Housing and other basic needs
• The long-term financial impact of the relationship and its breakdown

These factors may lead the Court to adjust the division to support a fair outcome into the future, not just a snapshot of past contributions.

e. Overall fairness

Finally, the Court stands back and asks whether the overall result is “just and equitable” in all the circumstances. Two cases that look similar from the outside can lead to very different outcomes once individual contributions and future needs are taken into account.

7. The role of mediation

Mediation offers a structured, confidential environment to:

• Clarify what is in the property pool
• Explore options that meet both parties’ needs
• Reality‑test proposals against how the law generally works
• Work towards an agreement you can both live with

Even in complex or high‑conflict situations, many couples are able to resolve property issues without asking a Judge to decide for them.

Legal advice is still important but mediation can reduce conflict, cost and delay.

If you are unsure about your rights or options it is sensible to speak with a family lawyer alongside any mediation process, so you can negotiate with a clear understanding of how the law applies to your situation.

If you’re ready to get help with dividing property after separation, you can book your family mediation with me today.