What is my Husband or Wife entitled to in a Divorce?

To determine what your husband or wife is entitled to in a divorce, you must first understand the property settlement process.

Understanding Property Settlement

Property settlement is when a husband and wife’s assets, liabilities, and financial resources are divided or distributed following a separation or divorce.

Property settlement may occur before a divorce, within 12 months of a final divorce order being made, or at a later date if the Court grants permission to apply for property settlement orders out of time (in very limited circumstances).

The Court can make Orders for property settlement by consent of the husband or wife, or following contested Court proceedings.

Property settlement can also be reached without the Court’s involvement by the parties entering into a Financial Agreement. This may be a Binding Financial Agreement (BFA) or a “prenup”, made before, during a marriage or relationship, or after separation or divorce.

Role of the Court & the ‘Just & Equitable’ Test

If the Court is asked to make orders for property settlement, the proposed orders must be ‘just and equitable’. This requirement does not apply if a husband and wife are seeking to formalise a property settlement by way of a BFA. However, both parties must agree to the terms of the BFA and therefore any proposed division of property.

When considering whether orders are just and equitable, the Court applies a 4-step process.

As of 10 June 2025, the Family Law Act includes a clearer statutory framework for this process, with greater emphasis on each party’s financial circumstances, including housing, caregiving duties, and economic vulnerability.

1. Identify Assets & Liabilities

First, the husband and wife must identify their assets and liabilities. If the parties cannot agree on the values of the various assets, it may be necessary to engage an expert to provide a valuation.

Assets can include:

the family home;
investment properties
motor vehicles; and
savings and shares.

The value of assets is determined by their current market value. Superannuation is treated separately and is often equalised between the parties. Inheritances received after separation may be treated as a financial resource rather than an asset.

Both parties are now legally required, under the Family Law Act, to provide full and frank disclosure of their financial position. Failure to do so may lead to the orders being set aside or cost penalties.

2. Husband & Wife’s Respective Contributions

The husband and wife’s contributions to the acquisition, conservation, and improvement of the property pool are assessed in terms of:

Financial contributions;
Non-financial contributions; and
Contributions as a homemaker or parent.

Each type of contribution is weighted equally. Over time, especially in long-term relationships, contributions are more likely to be viewed as relatively equal.

3. Husband & Wife’s Future Needs

Next, the Court considers whether one party’s future needs justify an adjustment. Factors include:

Age and health
Income, property, and earning capacity
Primary care of children
Support responsibilities
Standard of living
Child support obligations.

Since 10 June 2025, the Family Law Act reframes this step to focus on current and future financial “circumstances” — including whether a party has access to secure housing, income, and support.

Where family violence, including financial abuse, has impacted a party’s ability to earn, contribute, or access funds, the Court is now required to consider that in determining the division.

4. Just & Equitable

Finally, the Court considers whether any proposed adjustment to the division is fair and just in all circumstances. This includes how the orders are to be carried out and their long-term impact.

So, What Is My Husband or Wife Entitled to in a Divorce?

In Australia, a split in favour of the economically weaker party of approximately 60:40 is more common than a straight 50:50 division. In some cases, the Court may award a 70:30 or greater division where justified by contributions or future needs.

Post-2025 reforms make clear that the Court must prioritise long-term economic fairness, especially where family violence or financial disadvantage is present.

Each case is unique. Factors like the size of the property pool, the contributions of each party, and their future needs will all determine what a husband or wife is likely to receive.

An application for property settlement must be made within 12 months of a final divorce order (or two years after separating for de facto couples). In exceptional circumstances, the Court may allow a late application.