Property settlement disputes can become complex legal battles that drain both finances and emotions. Section 90 of the Family Law Act provides a pathway for resolving these matters through court intervention.
We at Jameson Law see many couples struggle with understanding when and how to apply for property orders. This guide breaks down the application process, court considerations, and practical steps to protect your interests.
What Section 90 Covers in Property Settlement
Section 90 of the Family Law Act 1975 provides the legal framework for property settlements when de facto relationships break down. This section gives courts the power to make orders about how assets, debts, and superannuation get divided between former partners. The law treats de facto couples similarly to married couples, but with stricter time limits and relationship requirements.
Property Orders and Financial Arrangements
Courts can make orders that cover all types of property under Section 90, including real estate, business interests, bank accounts, investments, vehicles, and household items. The Court can make a financial or property order based on an agreement between the parties (consent orders) or after a court hearing or trial. Financial orders can also address spousal maintenance, debt allocation, and superannuation splits. Applications must be filed within two years of relationship breakdown, or you need court permission to proceed later. The Federal Circuit and Family Court processed over 8,200 de facto property applications in the 2023-24 financial year.
Relationship Recognition Requirements
Before courts can make property orders, you must prove a genuine de facto relationship existed. The court examines factors like cohabitation duration, financial interdependence, shared household responsibilities, and public recognition of the relationship. Relationships that last less than two years face additional hurdles unless children are involved or significant contributions were made. Property settlements in de facto relationships can result in varying percentage distributions, with cases showing outcomes ranging from equal splits to more significant adjustments based on individual circumstances.
Evidence and Documentation Standards
Courts require substantial evidence to establish your relationship status. Documentation that proves joint finances, shared residence arrangements, and mutual commitment becomes vital evidence in your case. Bank statements, lease agreements, utility bills, and witness statements all support your application. The court also considers whether you presented yourselves as a couple to family, friends, and the community (social recognition plays a significant role in these determinations).
The application process itself involves specific procedures and documentation requirements that can make or break your case.
The Section 90 Application Process
Filing Requirements and Documentation Needed
Section 90 applications demand precise documentation and strict adherence to court procedures. The Federal Circuit and Family Court requires specific forms, including an Initiating Application (Form 1) and supporting affidavits that detail your relationship history, financial contributions, and current circumstances. You must complete the Priority Property Pool assessment if the net value of the property is not significantly greater than $550,000, which can expedite your case processing.
Essential documents include relationship evidence such as joint bank statements, lease agreements, utility bills, and witness statements that span your cohabitation period. Financial disclosure requires comprehensive asset valuations, superannuation statements, tax returns, and debt confirmations. Filing fees range from $365 to $1,140 depending on your application type (though exemptions apply for eligible applicants). All documents must be served on the other party within specified timeframes, typically 28 days before the first court date.
Court Procedures and Timeline Expectations
Court procedures follow a structured timeline that begins with your initial application and extends through final orders. The first court event typically occurs 12-16 weeks after you file, where procedural directions get established. Pre-action procedures must be followed, requiring genuine attempts at dispute resolution before court involvement, including family dispute resolution conferences.
Interim hearings may occur within 6-8 weeks if urgent financial protection is needed. The discovery phase requires both parties to exchange complete financial disclosure within court-ordered timeframes. Final hearings for contested matters often occur 12-18 months after you file (depending on court availability and case complexity). Non-compliance with court directions results in cost penalties and procedural disadvantages that can significantly impact your outcome.
Common Mistakes to Avoid During Application
Three fundamental mistakes consistently destroy Section 90 applications and cost applicants thousands in legal fees. First, inadequate relationship evidence fails to establish the genuine domestic basis required for court jurisdiction. Second, incomplete financial disclosure triggers adverse cost orders and credibility issues that undermine your entire case. Third, missing the two-year limitation period without valid grounds for extension results in automatic application dismissal.
Property valuations older than six months at the time you file create additional vulnerability to challenges. Poorly drafted affidavits that lack specific dates, amounts, and factual details weaken your position substantially. Template legal advice without case-specific analysis often leads to procedural failures and wasted court appearances.
Understanding these procedural requirements sets the foundation for success, but courts evaluate much more than paperwork when they make property orders.
Factors Courts Consider Under Section 90
Courts apply a rigid four-step process when they make property orders under Section 90, and this framework directly impacts your settlement outcome. The Federal Circuit and Family Court examined over 8,200 de facto property cases in 2023-24, with settlement amounts that varied dramatically based on how well parties presented their contributions and needs. Courts first identify the asset pool, then assess each party’s contributions, evaluate future needs, and finally determine what orders are just and equitable.
Financial Contributions Receive Maximum Weight
Financial contributions receive the heaviest weight in most property settlements, particularly in shorter relationships without children. Courts examine initial contributions like deposits, mortgage repayments, loan guarantees, and direct asset purchases with forensic detail. The High Court’s decision in Stanford v Stanford involved an elderly couple involuntarily separated by circumstances, with one party dying during proceedings.
Property that parties acquired before the relationship but improved during cohabitation gets complex treatment, with courts that separate pre-relationship value from relationship contributions. Business assets require expert valuation, and courts scrutinise whether business growth resulted from joint efforts or individual skill. Superannuation contributions are treated as property and split according to the same principles, with significant changes in household wealth documented in recent research.
Non-Financial Contributions Get Equal Recognition
Homemaker and parent contributions receive equal recognition to financial contributions under the Family Law Act, but proof of their value requires strategic evidence presentation. Courts assess domestic duties, child care responsibilities, property maintenance, and support for the other party’s career development. The landmark case of Ferraro v Ferraro demonstrated that extensive homemaker work over a 20-year relationship can justify a 60 per cent property settlement despite minimal financial contribution.
Care for elderly relatives, management of rental properties, or support for a partner’s business operations all constitute valuable non-financial contributions. Documentation becomes vital – school records, medical appointments, renovation photos, and witness statements from family members provide concrete evidence of your domestic contributions.
Future Financial Needs Drive Final Adjustments
Courts make percentage adjustments based on each party’s future financial capacity and responsibilities. Age, health, income capacity, care of children, and financial resources all influence these adjustments. Parents with primary custody typically receive additional percentage points, with adjustments that range from 5-15 per cent based on the children’s ages and needs.
Health conditions that limit income capacity can justify substantial adjustments, particularly when supported by medical evidence and vocational assessments. The court considers whether each party can support themselves post-settlement, with particular attention to parties over 50 who face employment challenges. Recent Federal Circuit Court decisions show future needs adjustments that average 7.5 per cent of the total asset pool when children under 12 are involved.
Final Thoughts
Section 90 Family Law Act applications demand strategic preparation and precise execution to achieve successful property settlements. The two-year limitation period creates urgency that requires immediate action after relationship breakdown. Courts processed over 8,200 de facto property cases in 2023-24, with outcomes that varied dramatically based on evidence quality and legal representation.
Professional legal assistance becomes essential when asset values exceed $100,000, complex business interests exist, or when the other party has retained legal counsel. Self-representation in contested matters typically results in unfavourable outcomes and higher overall costs. The four-step court process demands comprehensive financial disclosure, expert property valuations, and strategic presentation of contributions that most individuals cannot navigate effectively alone.
We at Jameson Law understand the complexities that arise in Section 90 Family Law Act applications and provide tailored legal support that maximises your settlement outcome while minimising emotional and financial stress. Our team has extensive experience in family law matters (including property settlements and court procedures). Contact Jameson Law today to discuss your property settlement options and protect your financial future through expert legal guidance.
