Property settlements - How the Family Court decides

How does the Family Court make decisions about property settlement?

The Family Court generally follows a five-step process when deciding how assets and liabilities will be divided:

1. Work out what property there is and the value of the property
2. Decide if there should be a property settlement
3. Look at the contributions each person has made (this includes, financial, non-financial, homemaker and parent contributions)
4. Look at the current and future needs of each person, and
5. Check the property settlement is ‘just and equitable’ (fair).

The court usually applies these steps in the order set out above. However, the court can take these steps in any order to ensure a just and equitable outcome.

How does the Family Court approach matters with small asset pools?

The Family Court has introduced a program the PPP500 (Priority Property Pools under $500,000) program. The aim of the program is to provide a simplified way of resolving property disputes minimising legal costs and preserving the parties' assets.

You are eligible for the program if you meet the following:

• the net property of the parties (excluding superannuation interests) is, or is likely to be, $500,000 or less, and
• there are no entities (such as a family trust, company, or self-managed superannuation fund) owned or in the effective control of either party that might require valuation or expert investigation, or any issues of complexity in the case, and
• neither party in the proceedings seeks orders:
  • for parenting or any other order pursuant to Part VII of the Family Law Act or Part 5 of the Family Court Act,
  • pursuant to the Child Support (Assessment) Act 1989 and/or the Child Support (Registration and Collection) Act 1988, or
  • by way of enforcement, or arising from a contravention, of an order or obligation whether a parenting or financial obligation.

If you are filing an application under the PPP500 program there are specific court documents you need to file including an Initiating Application, a Financial Statement (PPP500) and a Case Information Affidavit (PPP500).

For further information on this program see Priority Property Pools under $500,000 Cases.

When does the Family Court follow the five-step process?

The Family Court follows the five-step process when:

• hearing a court case about property matters, and
• deciding if an agreement reached between people outside court is fair.

When people reach their own agreement about property settlement and file an Application for Consent Orders (Form 11) with the Family Court, the court must be satisfied the property settlement is fair before it will make orders in terms of the agreement.

Step 1: Work out what property there is and the value of the property

The second step the Family Court will generally take is to work out what the asset pool is and the value of the pool. An asset pool is the collection of all the assets (property) and liabilities (debts) belonging to each person.

Find out more about what the Asset Pool is and what needs to be included in the Asset Pool.

Disclosure

Disclosure is the legal term used to describe the process of people sharing information about their assets and liabilities. This is an important part of a property settlement as the court needs to have a clear picture of the assets (property) and liabilities (debts) of each person.

Find out more about disclosure.

Valuations

The court will look at the value of the assets and liabilities at the time of the court proceedings, not what their value at the time of separation.

Find out more about how to value assets and liabilities.

Step 2: Decide if there should be a property settlement

The second step the court will generally take is to decide whether it is ‘just and equitable’ (fair) to become involved and make changes to people’s entitlements to property. This is because there is no automatic right to a property settlement following a relationship breakdown.

In most cases where two people were married or in a de facto relationship and shared finances, the court will determine that it is fair to order a property settlement.

Some of the reasons why the court may decide it is not fair to divide property include if:

• the relationship was very short
• finances were kept separate during the relationship and not mixed
• a long time has passed since separation (in cases where married couples have separated but not divorced), or
• the asset pool is small and there is not much to be divided.

Step 3: Look at the contributions each person has made

The third step the Family Court will generally take is to look at the contributions each person has made. This is an exercise which involves looking at the past – who brought what into the relationship and at what times. The Family Court then allocates a  percentage of the property pool to each person taking into account those contributions.

There are three main kinds of contributions a person can make:

• financial contributions
• non-financial contributions, and
• contributions as a homemaker and parent.

Financial contributions

Financial contributions can include:

• real estate, savings, motor vehicles and superannuation owned by a person
• income earned by a person
• payouts received by a person (for example, motor vehicle accident compensation, redundancy payout, workers compensation payment), and
• inheritance or gifts received by a person.

Non-financial contributions

Non-financial contributions are usually in the form of one person’s labour in improving the value of a property through renovations. The renovations should lead to a significant increase in the value of the property and need to be more than general maintenance or decoration.

Contributions as a homemaker and parent

Contributions as a homemaker and/or parent include cooking, cleaning, maintaining the parties’ property, and raising children. Contributions made as a parent are generally given equal value to financial contributions. For example, if one parent has worked full time during the relationship and the other parent has stayed at home to care for children from the relationship these contributions will be treated as equal.

Amendment taking family violence into account for married couples

The June 2025 amendments to the Family Law Act 1975 add family violence to the list of things that the court can consider when assessing contributions. Where relevant, the court will consider the effect of family violence to which one party has subjected or exposed by the other party. The impact of family violence could be relevant when assessing a party’s contributions to the property pool and to the welfare of the family (for example, if they were not allowed to work).

The timing of contributions is important

When contributions are made is important because the Family Court will treat these in different ways.

The Family Court will look at the following:

• contributions made at the start of the relationship
• contributions made during the relationship, and
• contributions made after separation.

Contributions made at the start of the relationship

The assets and liabilities (debts) each person already has at the start of the relationship are known as ‘initial contributions’. For example, one or both people may already own real estate, motor vehicles or have superannuation that they bring into the relationship.

Initial contributions are not given a dollar-for-dollar value in a property settlement. For example, a person who brings in a property with $100,000 equity at the start of the relationship, will not automatically receive a $100,000 credit in a property settlement following separation. This is especially the case in long relationships, where one person’s contributions are likely to be balanced out over time by the other person’s contributions during the long relationship.

Contributions made during the relationship

Financial contributions made during the relationship can be anything that is purchased or earned by either person when in the relationship. A person’s contributions as a parent are impossible to value as a dollar amount. Instead, the law says that these contributions are equal to, and just as significant as, a person’s financial contributions.

Contributions made after separation

Contributions made after separation are known as ‘post-separation contributions’. These contributions can be anything that is purchased or any debt created by either person after their relationship has broken down.

It may be possible for contributions made after separation to either be kept out of the asset pool or put in a separate pool that the court looks at. You should get specific legal advice about this situation as it is complex.

Step 4: Look at the current and future needs of each person

The fourth step the Family Court will take is to look at the current and future needs of each person to see if there should be any adjustment to the percentages allocated to each party based on contributions to ensure the property settlement is fair. This is an exercise in looking forward - what does each person need now and in the future?

A common example of when an adjustment is made to take into account the current and future needs of a person is when one person is the primary carer of young children from the relationship and caring for the children impacts on their ability to work to earn an income.

The law about property settlements sets out a list of things to be taken into account by the Family Court when looking at the current and future needs of each person. Some of the common things the Family Court considers include

• the age and health of both people 
• the income, property and financial resources of both people
• the physical and mental capacity for employment of both people
• whether either person has care of a child under the age of 18 years, and
• any other facts or circumstances which should be taken into account.

For a full list of things the Family Court considers when looking at current and future needs in relation to married couples see Section 79(4) of the Family Law Act. See s 205ZD Family Court Act for this list in relation to de facto couples.

June 2025 amendments to the law for married couples

There are new factors the court will now consider when assessing the current and future circumstances of married parties including the following:

1. Family violence: Where a party was subjected or exposed to family violence, this factor permits the court to consider the economic effect of any family violence that a party was subjected or exposed to, on their current and future circumstances.
2. Wastage: Where a party intentionally or recklessly caused any material wastage of property or financial resources, this factor permits the court to consider the effect of that wastage in assessing the parties’ current and future circumstances.
3. Liabilities: Where the parties incurred any liabilities, this factor permits the court to consider the nature of the liabilities, the circumstances relating to them and the impact of those liabilities on the financial future of the parties.
4. Housing needs: This expands the existing factor regarding the care of children under 18, allowing the court to consider the need of either party to provide appropriate housing for children under 18.

Step 5: Check the property settlement is fair and just

The fifth and final step the Family Court will take is to look at the proposed property settlement as a whole and the impact it will have on each person to decide whether the division is fair.

What about pets? Companion animals

Family law treats animals as property to be divided like any other type of property.

As of 10 June 2025, in cases where parties were married, there have been changes to the law about family pets (“companion animals”). Where parties cannot agree about the ownership of companion animals following separation, the court can consider this dispute separate from other property. These changes will apply in all cases commenced on or before 10 June 2025 (except cases in which a trial commenced before 10 June 2025).

These changes do not apply in cases where parties were not married (that is, the court will treat disputes about pets in the same way as other property to be divided).

“Companion animals” are defined as animals kept primarily for companionship. Companion animals do not include assistance animals or animals kept as part of a business, for agricultural purposes or for use in laboratory tests or experiments. Animals kept for more than one purpose are not considered companion animals (e.g., a working sheep dog that is also a companion).

If a dispute about a companion animal goes to court, the court must consider things like:

• whether either party has harmed the pet,
• who the pet is most attached to (including attachments to your child/ren),
• who bought the pet,
• who cared for the pet, and
• who can care for the pet going forward.

The court has a broad discretion to assess and weigh these factors.

The court cannot make an order for shared ownership, shared care or shared responsibility for the costs of a companion animal.

More Information

Family Court of WA resources:

• Dividing Property for more information about the principals that guide the Family Court when making decisions about property.
• Pre-action procedures for information about what you need to do before starting a property case in the Family Court.
• Property and Financial for information about the forms you need to complete to start a property case in the Family Court.
• Property and Financial Information Kits and Brochures
• Handbook for Property Cases is designed to help people who are representing themselves in a property case in the Family Court.

Reviewed: 17/06/25