Property Settlement WA: The Five-Step Court Process

A property settlement in Western Australia is how a separating married or de facto couple divides their assets, debts, superannuation, and financial resources, either by agreement or through the Family Court of Western Australia. The court works through a structured five-step process to decide what a fair division looks like, and the same principles apply whether you were married or in a de facto relationship.

WA is the only state with its own family court exercising both state and federal jurisdiction, so property matters for both married and de facto couples are handled in the Family Court of Western Australia rather than the federal courts.¹ For married couples, section 79 of the Family Law Act 1975 (Cth) governs. For de facto couples, section 205ZG of the Family Court Act 1997 (WA) mirrors that federal provision.²

The Five-Step Process the Court Uses

The Family Court of WA generally applies five steps when deciding how property should be divided. The order can shift, but each step does distinct work.³

Step 1: Identify and Value Everything

The court first works out what each person owns and owes: real estate, bank accounts, vehicles, investments, superannuation, business interests, mortgages, credit card debts, and anything else of value. Both parties have a legal duty of full and frank disclosure of their financial position.³

Assets are valued as at the time of the court proceedings, not the date of separation.³ Valuations are generally required to be no more than six months old, and real estate typically needs a sworn valuation from an accredited valuer rather than an agent’s appraisal.⁴

Step 2: Is It Just and Equitable to Intervene?

Before adjusting anyone’s property, the court asks whether it is actually fair to make an order at all. There is no automatic right to a property settlement. The court can decline where a relationship was short with strictly separate finances, a long time has passed since separation, or the pool is too small to justify division.³

The High Court in Stanford v Stanford [2012] HCA 52 held the court must be satisfied it is just and equitable to make a property order before turning to the contributions and future needs assessment, and warned against treating property division as an automatic consequence of separation.⁵

Step 3: Assess What Each Person Contributed

The court then looks at the history of the relationship and allocates a percentage share based on contributions in three categories.

Financial contributions: income, real estate, savings, superannuation, inheritances, gifts, and payouts such as workers’ compensation or redundancy.
Non-financial contributions: labour that significantly increased an asset’s value, such as major renovations beyond routine maintenance.
Homemaker and parent contributions: cooking, cleaning, property maintenance, and raising children. These are treated as equal in principle to financial contributions, so a stay-at-home parent and a full-time earner are considered to have contributed equally.³

Timing matters. Assets brought in at the start of the relationship are counted, but their weight diminishes over a long relationship, so there is no automatic dollar-for-dollar credit for what someone owned before. A large inheritance received near the end of a relationship tends to carry more weight than one received at the beginning.⁶ Post-separation contributions can be factored in or kept in a separate pool depending on the circumstances.³

Step 4: Adjust for Future Needs

After the contributions assessment, the court considers whether adjustments are needed for each party’s future financial position. For married couples this comes from section 79(4) of the Family Law Act 1975 (read with section 75(2)); for WA de facto couples, the equivalent is section 205ZD of the Family Court Act 1997.³ The court weighs:

age and health of both parties;
current income, property, and financial resources;
earning capacity, including whether each person can realistically find appropriate employment given their physical and mental health;
care of children under 18, including the need to house them; and
any other relevant circumstances.⁷

Step 5: Stand Back and Check the Result

The court reviews the proposed division as a whole to confirm it is fair. If the outcome from steps three and four looks unjust taken together, the court can make further adjustments.³ The general aim is a clean break that ends financial ties between the parties where possible.⁸

How Superannuation Is Split

Superannuation is treated as property in WA and can be split between separating parties. For married couples the mechanism sits in Part VIIIB of the Family Law Act 1975; for de facto couples it is Part VIIIC. Since 28 September 2022, WA de facto couples have been able to split superannuation on the same basis as married couples, a right that was previously unavailable to them.⁹

A superannuation splitting order can award the non-member spouse a specific dollar amount or a percentage of the splittable payment.¹⁰ Valuation depends on the fund type. Accumulation balances can be pulled from the ATO’s online portal or recent statements. Defined benefit funds need a more complex family law value calculated using a specific formula, and the court provides a Superannuation Information Kit. Self-managed super funds usually require professional accounting advice.⁹

The fund trustee must be notified of proposed splitting orders at least 28 days before the orders are filed or a hearing takes place. If the trustee does not respond within that 28-day window, parties may assume no objection.¹⁰

Deadlines for Filing

Married couples must file for a property settlement within 12 months of the date their divorce order takes effect. A divorce order typically becomes effective one month and one day after the divorce hearing. De facto couples must file within two years of the date of final separation.¹¹

If the deadline passes, you must seek the court’s leave to bring proceedings out of time. Leave will only be granted if the applicant or a child would suffer hardship, or, in the case of spousal maintenance, the applicant was unable to support themselves without a government pension or benefit when the deadline expired. Leave is not required if both parties consent to out-of-time proceedings.¹¹ Parties can also enter a financial agreement at any time without court approval, which sidesteps the time limits.¹²

De Facto Couples: Extra Threshold Issues

De facto couples in WA have broadly the same property rights as married couples but face additional hurdles getting into court. At least one party must reside in WA at the time of the application, and either both parties must have lived in WA for at least a third of the relationship’s duration or substantial contributions must have been made while residing in WA.¹³

You also have to establish the relationship existed, and this can be contested. WA applies a higher threshold than other states, and the court looks at length of cohabitation, financial interdependence, whether there was a sexual relationship, mutual commitment to a shared life, and the couple’s public reputation.¹⁴ The relationship must generally have lasted at least two years, though shorter relationships can qualify if there is a child under 18 and a failure to make orders would cause serious injustice, or if the applicant made substantial contributions.¹³

Steps Before You Can File

Schedule 1 of the Family Court Rules 2021 (WA) requires three pre-action steps before filing a property application.¹⁵

Disclosure. Each party shares information about their property, income, and financial resources at the earliest opportunity and no later than two days before the first court event.
Dispute resolution. Parties attempt to resolve the matter through negotiation, mediation, conciliation, or arbitration.
Exchange of correspondence. If dispute resolution does not produce an agreement, parties exchange formal letters setting out the issues, the orders they intend to seek, and a genuine settlement offer, with at least 14 days to respond.¹⁶

These steps can be waived where there are allegations of family violence, urgent circumstances (such as a risk one party might sell or hide assets), fraud allegations, or an approaching statutory deadline.¹⁵ Failing to comply without a valid reason can result in cost orders against the non-compliant party.¹⁶

Formalizing an Agreement

Consent Orders

When separating couples reach an agreement, they can ask the Family Court to formalize it as consent orders, which carry the same legal weight as an order made after a contested hearing.¹⁷ The paperwork is an Application for Consent Orders (Form 11) and a draft consent order signed and dated by both parties on every page.¹⁸

The court will only approve consent orders for property matters if satisfied the division is just and equitable. Both parties must provide full financial disclosure — current values for all property, superannuation, liabilities, and financial resources — and must acknowledge they had the opportunity to obtain independent legal advice. The application must be filed within 90 days of the date the first affidavit is sworn.¹⁸

Financial Agreements

As an alternative, couples can enter a financial agreement — a private contract under Part VIIIA of the Family Law Act 1975 (married), Division 4 of Part VIIIAB (de facto nationally), or the Family Court Act 1997 for WA de facto couples.¹⁹ A valid financial agreement removes the court’s power to make property orders on the matters it covers.

Each party must receive independent legal advice from an Australian legal practitioner before signing, and the advising lawyer must provide a certificate confirming the advice was given.¹² Financial agreements do not require court approval and can be made before, during, or after the relationship, with no filing time limits.¹⁹ They are generally harder to enforce than consent orders; if one party refuses to comply, there is no automatic judicial oversight and the other party may need to bring separate proceedings.

The court can set aside a financial agreement on grounds including fraud, duress, failure to disclose relevant financial information, unconscionable conduct, a material change in circumstances affecting a child, or where the agreement has become impractical to carry out.²⁰

A Fast Track for Smaller Pools: PPP500

The Family Court of WA runs a streamlined pathway called PPP500 (Priority Property Pools under $500,000) for simpler property disputes. To qualify, the net value of the parties’ property excluding superannuation must be $500,000 or less, there must be no complex entities like family trusts, companies, or self-managed super funds, and the parties must not be seeking parenting, child support, or enforcement orders.²¹

PPP500 cases are managed by a Registrar until the dispute resolution stage. The Registrar can make orders in chambers to identify issues, direct disclosure, and arrange valuations. If the parties cannot reach agreement, the Registrar refers the matter to a Magistrate. The program is designed to minimize legal costs and preserve assets in smaller pools.²¹

Duty and Capital Gains Tax

Property transfers resulting from the breakdown of a marriage or de facto relationship in WA can be assessed for nominal transfer duty (rather than the general rate) under sections 128–133 of the Duties Act 2008. Court orders made under the Family Law Act 1975 or Family Court Act 1997 that effect a property transfer are exempt from duty altogether. To qualify for nominal duty on non-court-order transfers, the relationship must have irrevocably broken down and the property must be transferred to a party to the relationship, their children, or a trustee for the children or superannuation. Transfer documents must be lodged within two months of creation.²²

A mandatory CGT rollover applies when assets are transferred pursuant to a court order, consent order, arbitration award, or binding financial agreement under the Family Law Act 1975. For WA de facto couples, the qualifying instrument is a binding agreement under section 205ZS(1) of the Family Court Act 1997. The rollover defers the CGT liability to the person receiving the asset, who inherits the original cost base. Informal or private agreements that do not meet the statutory requirements do not attract the rollover, and any transfer is treated as occurring at market value for CGT purposes.²³

What Changed in June 2025

The Family Law Amendment Act 2024 (Cth), passed on 10 December 2024, brought in reforms that took effect on 10 June 2025. They apply to new proceedings and to matters already underway where a final hearing has not commenced.²⁴ The property-related changes:

Family violence. Courts must now consider the economic impact of family violence when assessing both contributions and future needs, including where violence prevented a party from working or contributing to the pool.³
Wastage. Intentional or reckless material wastage of property or financial resources can be factored into the assessment of current and future circumstances.²⁴
Liabilities. The nature, circumstances, and future financial impact of debts are now explicit considerations.²⁴
Housing for children. The court can explicitly consider the need for a party to provide appropriate housing for children under 18.³
Companion animals. For married couples, disputes about pets can be treated separately from the general property pool. The court considers who purchased and cared for the animal and the level of attachment (including by children), but cannot order shared ownership or shared care. This change does not apply to de facto couples, for whom pets remain standard property.³
Codification of disclosure. The duty of financial disclosure, previously living only in court rules, is now embedded in the Family Law Act 1975. Legal practitioners must inform clients of the duty and the consequences of non-compliance.²⁴

If Someone Does Not Comply

If a party fails to comply with a property order, the other party can apply to the Family Court of Western Australia for enforcement. Two main routes exist. An enforcement application seeks to compel the non-compliant party to follow the order, and the applicant must prove the breach on the balance of probabilities. A contravention application seeks both compliance and penalties; these proceedings are quasi-criminal in nature and may require proof beyond reasonable doubt.²⁵

Penalties for a proven breach without reasonable excuse range from payment of the other party’s legal costs and fines to community service, bonds, and, in extreme cases, imprisonment. The court may also vary orders if compliance has become impossible.²⁶ A breach may be excused if the person was unaware they were violating the order or reasonably believed the breach was necessary to protect someone’s health or safety, provided it lasted only as long as necessary.²⁵

1
Supreme Court of Western Australia. Court System in Western Australia
2
Family Court of Western Australia. Self-Represented Litigants Handbook – Property Case
3
Legal Aid Western Australia. How the Court Decides Property Cases
4
Mondaq. What Happens if Property Value Changes Before Divorce Settlement in Australia
5
High Court of Australia. Stanford v Stanford
6
O’Sullivan Davies Lawyers. Assessing Your Contributions to a Relationship
7
Federal Circuit and Family Court of Australia. Financial Proceedings Overview
8
Armstrong Legal. Property Five Step Test
9
Legal Aid Western Australia. Superannuation
10
Family Court of Western Australia. Superannuation Splitting
11
Lewis & Trovas. Time Limits of Property Settlement After Separation
12
Affinitas Legal. Binding Financial Agreement vs Consent Orders
13
Family Court of Western Australia. De Facto Relationships
14
KDK Family Law. De Facto Separation
15
Legal Aid Western Australia. Property Settlement Pre-Action Procedures
16
Family Court of Western Australia. Pre-Action Procedures
17
Family Court of Western Australia. Consent Orders
18
Family Court of Western Australia. Application Consent Orders Form 11
19
Federal Circuit and Family Court of Australia. Financial Agreements
20
Ahern Sierakowski. Can a Binding Financial Agreement Be Set Aside by a Court in Western Australia
21
Family Court of Western Australia. PPP500 Brochure
22
Western Australia Department of Treasury and Finance. Duties Fact Sheet – Marriage and De Facto Transfers
23
Australian Taxation Office. When the Relationship Breakdown Rollover Applies
24
Australian Government Attorney-General’s Department. Family Law Changes June 2025 – Information for Family Law Professionals
25
Meillon & Bright Lawyers. Breach Court Orders
26
Affinitas Legal. Enforcement Contravention Applications