For most couples, the family home is the biggest asset they own. It is also the one with the most feeling attached to it. After separation, the question of who keeps it, who sells it and who pays the mortgage can be stressful.
This post explains the general principles Australian courts apply to property settlements and how the family home fits in. It cannot predict an outcome. Every case turns on its own facts.
There is no automatic right to a property settlement
Property settlements for separating couples are dealt with under the Family Law Act 1975. In Western Australia, property matters for de facto couples go to the Family Court of Western Australia instead. The court starts by identifying what each person already owns, legally and in fairness. It will only change those existing interests if it is just and equitable to do so.
Legal Aid ACT says there is no formula or rule, because there are many considerations. A fifty fifty split is not automatic. The result depends on the facts of each case.
The steps courts generally follow
Legal Aid WA explains that the court generally follows a five step process, and it can take the steps in any order. That means the steps are a guide, not a strict checklist. The order may change from case to case. You can read the full explanation on the Legal Aid WA page on how the Family Court decides property settlements. In short, the steps are these:
- Work out what property there is and what it is worth.
- Decide whether it is just and equitable to make an order at all.
- Look at what each person contributed.
- Check whether the split should be adjusted for each person’s current and future needs.
- Step back and ask whether the overall result is fair.
The family home is not treated as a separate category. It sits in the asset pool alongside savings, superannuation, vehicles and debts. Its value is generally taken as at the time of the court proceedings.
How the family home is valued and counted
The home is counted at its current value, and the mortgage is counted as a debt against it. What matters is the net position. The same house can leave a different amount in the pool depending on what is still owed on it.
If the other person has been hiding or undervaluing assets, the whole calculation can be affected. The guide to finding hidden assets covers how that problem can arise. Full and frank financial disclosure is expected before a matter reaches court.
Contributions to the home
Contributions go beyond whose name is on the title or who earned the higher wage. Legal Aid WA explains that contributions can be financial, non financial, or made as a homemaker and parent. Renovations that significantly increase a property’s value can count, but routine maintenance and decoration do not count as non financial contributions.
The homemaker and parenting role also counts. Legal Aid WA says contributions made as a parent are generally given equal value to financial contributions. In other words, parenting work counts as a real contribution.
Initial contributions are treated carefully. A house bought before the relationship, or money a partner brought in, is not given a dollar for dollar value. It is one factor among many.
Future needs and the home
After looking at contributions, the court considers whether the percentages should move. Legal Aid WA lists factors such as age, health, income, capacity to work and whether either person cares for a child under 18. For people separating later in life, the article on divorce later in life looks at some of the extra pressures.
Most amendments to the Family Law Act began on 10 June 2025 under the Family Law Amendment Act 2024. The Federal Circuit and Family Court of Australia notice about the changes says they apply to all separating couples and include the economic effect of family violence. Legal Aid WA describes added factors for married couples. These include family violence, wastage of property, liabilities and the housing needs of children under 18. It does not say how they apply to de facto couples, so check which law applies to you, because Western Australia handles de facto property separately.
Where a parent cares for children, that care is one factor in the needs step. Child support is dealt with separately. The article on child support explains how that side works.
Leaving the home does not mean losing your share
Many people move out after separation and worry they have given up their claim. This is a common concern. Legal Aid ACT says moving out of the former matrimonial home does not by itself end your rights. That covers your share of the house and your belongings. Get advice before you make any big decisions.
Legal Aid ACT also notes that you may be able to protect property by lodging a caveat over the title. In some cases a court can make orders to stop a sale or spending. The right approach depends on your circumstances, so get advice early.
Time limits
You can apply for a property settlement at any time after separation. You do not have to wait for a divorce. But time limits generally apply when you apply to court, so it pays to check early.
Legal Aid NSW says married couples generally have one year from the date their divorce order comes into effect to apply to court. De facto couples generally have two years from the date of separation. Late applications are possible only in limited circumstances, so do not rely on that.
Making an agreement binding
Some couples agree on how to divide the home without going to court. Legal Aid NSW says you can keep the agreement informal or make a binding financial agreement. You can also apply for consent orders if you want the agreement to become court orders.
Legal Aid ACT notes that a binding financial agreement must be in writing. Both parties must get independent legal advice. An informal agreement does not stop a later claim within the time limits.
The court must be satisfied that a proposed settlement is fair before it makes consent orders. It does not simply approve whatever the couple signs. The rules in this area do change. For wider background, see the article on current trends in family law.
Frequently asked questions
Does the person whose name is on the title own the house?
Not necessarily. The court looks at the legal and equitable interests of both people. It can then consider contributions and needs. Having your name on the title is not the whole story.
Do I lose my share if I move out?
Legal Aid ACT says that moving out of the former matrimonial home does not by itself mean you lose your share. Your circumstances still matter. It is wise to get legal advice before you make big decisions.
How long do I have to apply?
For married couples, the general limit is one year after the divorce order takes effect. For de facto couples it is generally two years from separation. A court may allow a late application in limited circumstances, so seek advice early.
Is the split always equal?
No. There is no formula or rule. The court looks at contributions, needs and what is fair overall.
This article is general information only and is not legal advice. Property laws and processes differ between states and territories and they change over time. Please speak with a qualified family lawyer about your situation.
