Divorced Isn’t Settled: Why Your Divorce and Your Property Are Two Different Things

Ending a marriage can feel surprisingly straightforward. After years of separation, you complete the paperwork online one Sunday night, pay the fee and, a few weeks later, receive the divorce order. It feels like the final step.

For a lot of people that’s exactly what it is. For others, it’s the moment a quiet clock starts running.

Here’s the part nobody mentions on the divorce form: a divorce order and a property settlement, legally speaking, are two separate things. You can be fully, legally divorced and still have no binding agreement about who owns the house, the super or the business.

This article covers the difference, the deadline and what a lawyer would want you to know before you file.

What a divorce actually does

A divorce is one question: has the marriage broken down irretrievably? That’s the ground under section 48 of the Family Law Act 1975. In practice, the court requires you to have been separated for at least 12 months, although there are specific rules about brief attempts at reconciliation during that time.

That’s all it decides. It doesn’t ask who earned what, who looked after the kids, who owns the house, or who has the bigger super balance. In short, the application does not require you to settle your finances before filing for divorce.

One detail worth knowing: the divorce order doesn’t take effect the day it’s made. Under section 55 it generally takes effect one month later. That date matters, as you’ll see below.

Property is a different process, with different rules

Dividing property is a separate step, and there are three main ways to do it.

1. Consent orders. You and your former partner agree, and the court makes your agreement into orders. It then has the force of a court order.
2. A binding financial agreement. This is a private agreement, signed after each side gets independent legal advice. We’ve covered this in detail in our guide to binding financial agreements.
3. A court application. If you can’t agree, a judge decides.
   
   

When a court decides, it doesn’t just split things 50/50. Under the current version of section 79, it must not make an order unless it is satisfied that it is just and equitable to do so.

To get there, it works through the following:

• Identifying assets and debts: Working out what each person owns and owes.
• Assessing contributions: Considering financial and non-financial contributions, including caring for the home and raising children.
• Considering future circumstances: Looking at factors such as each person’s age, health, income and responsibility for caring for children.

Those provisions were updated in the 2024 amendments, which took effect on 10 June 2025.

Notice that none of that is a prescribed formula. It’s a judgment call. That’s why agreeing to keep your own things years ago doesn’t necessarily settle the legal question.

The clock

This is the part that catches people out. The Act puts a time limit on starting property proceedings, and it starts when you’d least expect.

If you were married: under section 44(3), you generally have 12 months from the date the divorce order took effect to start property proceedings. Not 12 months from the date you separated. Not 12 months from when you applied. From the date the order took effect, which is the date a month after it was made.

If you were in a de facto relationship (a relationship where two people live together as a couple on a genuine domestic basis but are not legally married to each other): under section 44(5), the standard application period is 2 years from the end of the relationship. For more on how property works for de facto couples, see our guide to de facto property rights.

Here’s the practical consequence, in order:

• You separate.
• (Time passes. Often years.)
• You apply for a divorce. The order is made.
• One month later, it takes effect. The 12 months start here.
• Twelve months on, you generally need the court’s permission to start property proceedings.

What if the time has gone? You can ask for permission, called leave. It isn’t a formality. For married couples, under section 44(4), the court can’t grant leave unless it’s satisfied that hardship would be caused to a party or a child if it refused. The test for de facto couples is separate, set out in section 44(6). Either way, it is a much harder position than simply being on time.

It’s important to also say what this clock isn’t. It’s not a reason to rush into a bad agreement. It’s a reason to know the date, and to make a decision rather than let it run out unnoticed.

‘We’ve been separated for years. Surely that settles it.’

It’s the most natural assumption, and the one a lawyer will test first.

Time apart can matter to how a court views contributions and the future. But, as a starting point, it doesn’t automatically close the property pool at the date of separation. Assets are generally looked at as they are when the matter is decided, which means that a house bought, a business built, or super that has grown since you separated may still be part of the discussion. How much weight any of it gets is a different question, and it depends on the facts.

Now consider the other side. If you’ve built up your assets since separating, you might assume that getting divorced put the matter behind you. But without a proper financial settlement, your former partner may still be able to make a claim. A verbal agreement alone may not provide the legal certainty you need. Formalising the settlement can help protect both parties from future disputes.

Our earlier piece on the ‘clean break’ idea looks at finality in more depth. This article is about the two separate processes and the timing.

Filing your own divorce online? Read this first

Plenty of people do their divorce themselves, and it can be perfectly sensible. If that’s you, there are a few things worth doing alongside it, not after it.

• Find out your dates. When did you separate? When will the divorce order take effect? Put the 12-month date in your calendar the day you file.
• Decide what you want to do about property before the order is made. Even a short conversation with a lawyer about your options costs far less than finding out in year two.
• List what exists. Property, super, savings, debts, anything held in a business or trust. You’ll need it whichever path you choose.
• Don’t assume your ex will tell you if they’re planning to start proceedings. Keep your own records up to date, get independent legal advice, and make sure you understand the deadlines that apply to your situation.
• Be careful with informal agreements. A handshake, a text exchange or an email isn’t a binding settlement.

What you don’t need to have worked out

You don’t need to know whether you have a claim, what’s in the pool, or which path suits you.

You don’t need to have your paperwork in order. That’s what the first conversation is for.

Kingsford Lawyers acts for people in Brisbane, on the Gold Coast and Australia-wide, and we’re available 7 days a week. We consult in 10+ languages.

Book a free initial consultation. No obligation, no pressure.

Phone: 1300 244 342