Property Settlement After Divorce: What you Need to know.

Property Settlement After Divorce in NSW (2025 update): What You Need to Know

• From 10 June 2025, the Family Law Act was updated to spell out the property-settlement approach in the legislation and to require courts to consider the economic effect of family violence where relevant. New provisions also deal specifically with family pets and make disclosure duties more prominent in the Act. 
• Most married people must start a property case within 12 months of the divorce becoming final; for de facto couples it’s within 2 years of separation (leave can be sought out of time, but it’s not always granted). 
• Superannuation can be split by agreement or court order, and the Court can access ATO-held super balance information in proceedings to help locate funds. 
• CGT rollover can defer capital gains tax on asset transfers done under qualifying court orders or formal agreements. 
• In NSW, transfer (stamp) duty is generally exempt on relationship-breakdown transfers carried out under qualifying family-law instruments. 

1) Who can apply and when?

• Married couples can resolve property at any time after separation; if you need court orders and you are divorced, you generally have 12 months from the date the divorce takes effect to file. 
• De facto couples (NSW is a participating jurisdiction) can apply under the Family Law Act if the relationship meets the criteria (for example, 2 years, a child, registration, or substantial contributions). The time limit is 2 years from separation. 

If you’re “out of time,” you must ask the Court for permission (leave) — it’s discretionary. 

2) The updated legal framework (effective 10 June 2025)

The Family Law Amendment Act 2024 clarified how courts determine property cases. Whether you settle out of court or litigate, the same framework applies:

1. Identify all property and liabilities (what you own and owe).
2. Assess contributions (financial, non-financial, and homemaker/parenting).
3. Assess current and future circumstances (age, health, income capacity, care of children, and — importantly — the economic effect of any family violence, where relevant).
4. Make orders only if they are “just and equitable.” 

These steps are now reflected in the Act’s redrafted provisions (for marriages, see s 79; for de facto, s 90SM). The Court’s public guidance mirrors this approach and lists the kinds of contributions and “future needs” it considers. 

New in 2025

• Courts must consider the economic/financial impact of family violence when relevant to contributions and future needs.
• Companion animals (family pets) are addressed expressly. The Court decides ownership using listed factors (including any animal abuse and the attachment of parties/children) — shared possession orders aren’t available.
• Financial disclosure duties are elevated into the Act, reinforcing full and frank disclosure obligations alongside the Court Rules. 

3) What goes into the “property pool”?

The pool typically includes real estate, cash, vehicles, businesses, shares, trusts, cryptocurrencies, inheritances, and debts (mortgages, credit cards, tax debts). Superannuation is treated as a special type of property and can be split by court order (including consent orders) or by a superannuation agreement. Splitting doesn’t turn super into cash; it remains subject to super laws until release conditions are met. 

Finding super: In an active case, the Court can request super information held by the ATO to help locate accounts — a practical tool where one party lacks visibility. 

4) How the Court weighs contributions and future needs

The Court considers:

• Direct financial contributions (earnings, initial assets, injections, gifts/inheritances).
• Indirect/non-financial contributions (renovations, managing a business or investments).
• Homemaker/parenting contributions (care of children, domestic work).
• Future needs (age, health, income capacity, care and housing needs for children, and the impact of family violence, where relevant). fcfcoa.gov.au

There is no formula (no automatic 50/50). Each case turns on its facts, and any division must be “just and equitable.” fcfcoa.gov.au

5) Pre-action steps, disclosure and evidence

Before filing, parties are expected to follow pre-action procedures: attempt dispute resolution (where safe), give notice, exchange information, and make genuine offers to settle. 

Throughout, there’s a strict, ongoing duty of full and frank financial disclosure (now emphasised by both the Act and the Family Law Rules 2021). You may need to swear an Undertaking as to Disclosure acknowledging these duties. Non-compliance can have serious consequences. 

6) Settling by agreement: consent orders or a financial agreement

Most matters settle without a hearing. Your options include:

• Consent orders — filed with the Court; they’re binding and enforceable if the Court is satisfied the terms are just and equitable.
• Binding Financial Agreements (BFAs) — private agreements under the Act’s financial agreement provisions (e.g., ss 90B/90C/90D for marriages).

7) Court powers that may matter in complex cases

The Court can, in appropriate cases, make orders that bind third parties — for example, directing a creditor to substitute parties to a loan or requiring a company to register a transfer of shares.

Where speed and privacy are priorities, arbitration is available for financial/property disputes — a qualified arbitrator determines the matter, and an award can be registered with the Court. 

Smaller pools: If your net, non-super pool is under $550,000, you may be case-managed as a Priority Property Pool (PPP) Case for a more streamlined, cost-effective process. 

8) Tax and duty issues you should not ignore

• CGT rollover relief: Transfers of CGT assets because of a qualifying court order, arbitration award or binding (financial) agreement will usually qualify for the relationship-breakdown CGT rollover — CGT is deferred to the recipient’s later disposal. Structuring matters, so get tax advice early. 
• NSW transfer duty: NSW provides transfer-duty exemptions for relationship-breakdown transfers if they’re carried out under a qualifying instrument (e.g., consent orders or a binding financial agreement). This often applies to the family home. 

9) Pets, family violence, and other 2025 updates

• Family pets: From 2025 the Court decides who owns the pet using a specific list of factors (including any animal abuse and attachment of parties/children). The Court cannot make shared-possession pet orders. fcfcoa.gov.au
• Economic effect of family violence: The Act now expressly requires consideration of how family violence has affected a party’s contributions and future needs. Document this early (e.g., interruptions to work, financial control, counselling costs). Attorney-General’s Department
• Disclosure duties in the Act: The 2024 reforms elevated disclosure obligations into the Family Law Act, reinforcing what parties must provide and the consequences if they don’t. fcfcoa.gov.au

10) Practical timeline (what to expect)

1. Initial advice & strategy: Clarify goals, red flags (e.g., safety, urgent injunctions), and the likely range of outcomes.
2. Disclosure & valuation: Exchange bank statements, tax returns, super statements; obtain valuations (property, business). ATO super visibility can be requested through the Court in an active case. 
3. Negotiation / Mediation / Arbitration: Try to resolve safely and efficiently; document agreements as consent orders or a BFA. 
4. If no agreement: File, comply with directions, exchange affidavits and expert reports, and proceed to a just and equitable determination. The Court applies the identify → contributions → future needs → just & equitable framework. 

11) Common mistakes (and how to avoid them)

• Waiting too long — time limits can expire; get advice early. 
• Not formalising a deal — handshake agreements aren’t protected. Use consent orders or a BFA so you can rely on duty exemptions and CGT rollover. 
• Poor disclosure — failing to disclose can derail a settlement and risk penalties. 
• Forgetting super — it’s often one of the largest assets and can be split. 

FAQs

Do I have to be divorced to do a property settlement?
No. You can resolve property any time after separation. But if you later divorce, note the 12-month limit to file property/maintenance proceedings. 

Is superannuation always split 50/50?
No. The Court looks at the whole picture (contributions and future needs). Super can be split, but it isn’t mandatory. 

Can the Court deal with my company or trust?
Yes, in certain cases. The Court can make third-party orders (e.g., to a creditor or company) if statutory criteria are met. 

What if there’s been family violence?
The Court can weigh the economic impact of family violence when assessing contributions and future needs. Make sure it’s raised and evidenced. 

How CDA Lawyers can help

• Up-front strategy shaped by the 2025 reforms.
• Safety-first resolution via negotiation, mediation or arbitration where appropriate. 
• Tax-aware structuring to preserve CGT rollover and NSW duty exemptions where available. 
• Clear, enforceable documents (consent orders/BFAs) and, if needed, robust litigation.

Final note

This is an overview only. If you’re separating (or already separated) in NSW and want a tailored property-settlement plan that fits the 2025 rules, reach out to our Family Law team for confidential advice.