If you are going through a separation or divorce, you may be wondering exactly what property can be divided, right?
Many people assume the family home is the only asset that matters. In reality, the definition is much wider, and misunderstanding it can cause real problems later on.
This is a genuine risk, not just a technicality. The first step in any property settlement is identifying the full property pool available for division. Many separating couples try to negotiate this themselves before getting legal advice, only to run into trouble once a lawyer sits down to draft Consent Orders and realises not every asset the court requires has been accounted for, even where both parties agree on the split.
Below, we break down exactly what counts as property under Australian family law, and how the division process actually works once that pool is identified.
Property Is Not Limited to the Family Home
Under the Family Law Act 1975, property is far broader than bricks and mortar. A few key points are worth understanding before you start any negotiation.
‘Property’ includes assets acquired by either party, or both parties, to the relationship or marriage. It is not limited to items with both names on the title or purchase documents.
All assets either party has an interest or benefit in are included, whether acquired before or during the relationship. Property also includes assets held both in and outside of Australia.
What Property Can be divided in a Family Law Settlement?
The following is a non-exhaustive list of what is likely to be treated as property in your matter.
- The family home
- Investment properties
- Commercial properties
- Vacant land
- Business interests, including a Pty Ltd, sole trader arrangement, or partnership
- Trust interests
- Motor vehicles
- Motorcycles
- Motor vessels, including jet skis
- Shareholdings
- Other investments
- Funds in banks, building societies, credit unions or other financial institutions
- Cash
- Savings, such as term deposits
- Gold or silver bullion
- Credit card points
- Household contents, including furniture, antiques, artwork and other chattels
- Tools and garden equipment
- Stock or other business equipment
- The surrender value on any life insurance policies
- Superannuation, including a self-managed super fund
How Is Property Actually Divided?
Identifying the pool is only the first step. Once you know what property exists, it needs to be divided fairly between both parties.
There are two main paths. You and your former partner can reach your own agreement, which is then formalised through Consent Orders or a Binding Financial Agreement. If you cannot agree, either party can apply to the court for financial orders, which can cover both property division and spousal maintenance.
Either way, the court, or the agreement you formalise, needs to reflect each party’s financial and non-financial contributions during the relationship, along with each party’s future needs. Contributions go beyond salary. Gifts, inheritances and investments made by either party are also taken into account.
Superannuation is treated differently to most other assets. It is held in trust rather than as cash or property you can simply transfer, so it can only be split through a court order or a Binding Financial Agreement, not by informal agreement alone.
Do You Need Advice on Your Property Settlement?
We hope this clears up what is, and is not, treated as property under the Family Law Act. Every situation is different, particularly where trusts, businesses or overseas assets are involved, so it’s worth getting advice specific to your circumstances early rather than after a dispute arises.
If you need guidance, our property settlement team can help you identify your property pool and work through how it should be divided.
Speak With Our Family Law Team
If you should need specific advice regarding your unique circumstances, please contact our office for a free initial appointment.
Frequently Asked Questions
Can you give me an example of a property of division?
A common example is a couple who owns a family home worth $800,000 with a $300,000 mortgage, has $150,000 combined in superannuation, and $50,000 in savings and household contents. The court, or the couple’s own agreement, would assess each party’s contributions and future needs, then divide the total pool, home equity, superannuation and savings combined, in a way that is just and equitable, which may or may not be an even 50/50 split.
What are three types of property?
In a family law context, property generally falls into three broad categories: real property, such as land and buildings, personal property, such as vehicles, furniture and other chattels, and financial property, which includes superannuation, business interests, shares and trust interests. All three types can form part of the property pool in a settlement.
What are the 7 properties of math?
This is a mathematics term, referring to number properties such as the commutative, associative and distributive properties, and it doesn’t relate to family law. If you were actually looking for how property is categorised in a divorce or separation, see “What are three types of property?” above.
What is the division property?
In family law, “division of property” refers to the process of splitting the combined property pool, everything either party owns an interest in, between both former partners after separation. This can happen by agreement through Consent Orders or a Binding Financial Agreement, or, if the parties can’t agree, through a court order based on each person’s contributions and future needs.
