Family Law Property Settlements – Is 50/50 the Starting Point?

When separating from a spouse or de facto partner in South Australia, one of the first concerns is how property will be divided. Many people assume a 50/50 split is the automatic starting point. In reality, Australian family law does not begin with equality. Instead, the law requires that any property division be “just and equitable” based on each party’s circumstances.

This article explains how property settlements are determined under the Family Law Act 1975 (Cth), why the 50/50 belief is a common myth, and what factors influence the outcome.

The Legal Framework in South Australia

Property settlements in Adelaide and across South Australia are governed by federal law. The Family Law Act 1975 applies whether you were married or in a de facto relationship. Courts follow a structured four-step process:

1. Identify and value the property pool

   • Includes assets, liabilities and superannuation.

   • Property may be in joint names, one party’s name, or held in trusts/companies.

     
     

2. Assess contributions

   • Financial contributions (income, property purchased, savings).

   • Non-financial contributions (renovations, unpaid labour).

   • Homemaker and parenting contributions (raising children, managing household).

     
     

3. Consider future needs

   • Age, health and earning capacity.

   • Who will be the primary carer of children.

   • Financial disparity between parties.

     
     

4. Ensure the outcome is just and equitable

   • The court looks at the overall fairness of the division.

     
     

Importantly, there is no presumption that assets start at 50/50.

Busting the 50/50 Myth

While a half-and-half split might occur in some cases, it is not the starting point. The outcome depends heavily on contributions and future needs.

• Example 1: Long marriage with similar contributions

  Both partners worked and shared parenting responsibilities. A near 50/50 outcome may be appropriate.

  
  

• Example 2: One primary earner, one homemaker

  The homemaker’s role is considered equally valuable. An equal split or close to it may still result.

  
  

• Example 3: Large income disparity post-separation

  Where one party will struggle financially or care for children, they may receive more than 50%.

  
  

Contributions that Count

Courts recognise contributions broadly:

• Financial contributions: wages, investments, real estate, business interests.

• Non-financial contributions: home renovations, managing investments, unpaid work.

• Homemaker/parenting: running the household, raising children – treated as equal to breadwinner roles.

This ensures a parent who stayed home with children is not disadvantaged compared with the higher-earning partner.

Superannuation and Debts

• Superannuation is included in the property pool and can be divided between parties.

• Liabilities, such as mortgages, credit cards and loans, are also taken into account.

This means property settlement is about the net position, not just physical assets.

Special Considerations

Courts may also adjust for:

• Wastage or reckless spending: gambling, large withdrawals, or dissipation of assets.

• Short relationships: may lead to an outcome closer to direct financial contributions.

• Blended families or second marriages: where assets need to be protected for children from earlier relationships.

• Businesses and trusts: often complex, requiring valuation and consideration of control.

Settlement Options

Most property settlements do not end up in court. Options include:

• Negotiation and mediation – informal discussions or mediation with lawyers.

• Consent orders – an agreement approved by the court, making it binding.

• Binding Financial Agreement (BFA) – a private contract between parties.

• Court application – necessary only if agreement cannot be reached.

Time Limits in South Australia

• Married couples: must apply for property settlement within 12 months of divorce.

• De facto couples: must apply within 2 years of separation.

Failing to act within these limits can make settlement much harder.

FAQs

Do South Australian courts divide property 50/50?

No. There is no automatic starting point of 50/50. Courts apply the four-step process to achieve fairness.

Does superannuation get divided?

Yes. Super is part of the property pool and may be split.

Do homemaker contributions count?

Yes. Parenting and homemaker roles are treated as equal to financial contributions.

What if my partner wasted money?

The court can “add back” wasted funds when considering fairness.

Can we agree without going to court?

Yes. Consent orders or binding financial agreements can formalise your agreement.

Is the process different for de facto couples?

No. The same laws apply, but with a 2-year time limit to apply.

Key Takeaways

• A 50/50 split is not the legal starting point.

• Property division is based on contributions, future needs and fairness.

• Both financial and non-financial contributions are recognised.

• Superannuation and debts form part of the property pool.

• Early advice can help you achieve a fair, practical outcome.

At Craig McKay Legal, we help individuals and families in Adelaide and across South Australia achieve fair property settlements after separation. Whether you’re concerned about protecting your assets, understanding your entitlements, or formalising an agreement, our family law team can guide you through every step.

Contact us today for expert advice on separation, divorce and the division of matrimonial and de facto property. Take advantage of our complimentary no-obligation telephone consult on any new matter.

This article is for general information only and is not a substitute for legal advice. For advice specific to your situation, please contact our office.