A divorce is often confused with a property settlement. Simply put, a divorce is a legal process which formally ends a marriage. A property settlement, however, is the process of severing the financial relationship between parties to a marriage once and for all. They are two different legal processes.
When can I apply for a divorce?
You can apply for a divorce once you have officially separated from your spouse for 12 months. You can be separated but still live under the same roof, however, additional evidence must be filed with the Court explaining the circumstances under which you were separated, to prove that you were not in a relationship during that time.
It is important to note that, once a divorce has been granted, you have 12 months to finalise your property settlement or spousal maintenance matters, or to otherwise start court proceedings for property settlement or spousal maintenance. A failure to do so could result in you losing your rights to make an application in court for a property settlement or spousal maintenance.
What if my spouse does not agree to sign the divorce papers?
It is possible to apply for and obtain a divorce without your spouse’s consent. However, if you believe that your spouse may be prepared to participate in the divorce process, a joint application for divorce is likely to be the most favourable option.
Joint Applications
A joint application can be filed with the Court when both parties agree to file for divorce. Joint applications are the simplest and most cost effective way of applying for a divorce, as you are not required to serve the other party with the Application for Divorce after it has been filed.
Further, if you have children who are under 18 years of age, you may elect to not appear before the Court for a divorce hearing (something which is required for a sole application where there are children under the age of 18). The parties to a joint application may elect to share the costs of the application, or one party may agree to pay the entire costs of the application.
Sole Application
A sole application is necessary where one party cannot obtain an agreement from the other party to participate in a joint application.
Sole applications require your spouse to be formally served with the filed application. Further affidavits are also required to prove to the Court that the other party has been served. If you have minor children, and you file a sole application for divorce, it will be necessary for you to appear in Court on the day of your divorce hearing. We would be pleased to provide further advice regarding the divorce hearing and the benefits of a joint application at an initial consultation.
Can I get a property settlement without a divorce?
Yes, you can formalise your property settlement without applying for divorce.
Property settlements and divorces are filed in Court through separate applications, neither of which rely on the other to be made. As a divorce is the legal end to a marriage, there may be certain circumstances where the parties decide not to formally divorce, but they may wish to finalise their financial relationship.
Circumstances may also arise where parties wish to progress their financial settlement within the first 12 months following separation, and they do not wish to wait until they are eligible to file an Application for Divorce before they attempt to finalise their financial separation.
If you have questions regarding the process for property settlement, we invite you to contact our office for a consultation.
Divorce vs property settlement: the difference in plain English
Divorce and property settlement are linked because they usually follow the end of a relationship — but legally they do very different things.
- Divorce changes your legal marital status (you are no longer married).
- Property settlement changes your financial relationship (how assets, debts, and superannuation are divided and finalised).
In Australia, you generally need to show you have been separated for at least 12 months (and 1 day) before applying for divorce, and it’s possible to be “separated under one roof” if the relationship has ended but you still live at the same address (extra evidence is usually required). Property settlement, however, can often be negotiated and formalised without waiting for a divorce.
Comparison table: divorce vs property settlement
| Topic | Divorce | Property settlement |
|---|---|---|
| What it does | Legally ends the marriage (changes marital status). | Finalises the financial relationship (assets, debts, and super). |
| Do you need it to do the other? | No — you can deal with property before divorce. | No — you can settle property even if you never apply for divorce. |
| Main eligibility trigger | Separation for at least 12 months (and 1 day); separation under one roof is possible with extra evidence. | Separation is usually the practical trigger; the law looks at the relationship breakdown and financial circumstances. |
| Key deadline / time limit | N/A (time requirement is before filing). | If you were married, court applications generally must be started within 12 months after divorce becomes final (extensions require the Court’s permission). |
| Typical issues covered | Marriage status only (not parenting arrangements or asset division). | Home, mortgage, savings, investments, business interests, debts, and superannuation; sometimes spousal maintenance as well. |
| How it’s usually finalised | Court divorce order (application filed as joint or sole; sole requires service). | Commonly finalised by formal agreement (e.g., court orders by consent) or by the Court if parties cannot agree. |
Why the timing matters (especially after divorce)
One of the biggest traps is assuming that getting divorced automatically sorts out finances. It doesn’t. The Court can treat divorce and financial proceedings separately — and if you leave property/spousal maintenance too long after divorce, you may need special permission (leave) to start proceedings out of time.
- Divorce timing: you generally need at least 12 months (and 1 day) of separation before filing.
- Property timing: if you were married, property adjustment proceedings generally need to be commenced within 12 months after the divorce becomes final.
What counts as “separation” (including “under one roof”)
Separation isn’t only about living in different houses. A couple can be separated even while still living at the same address — for example, due to finances, children, or practical reasons. Where separation under one roof is relied on for divorce, the Court generally requires additional material explaining the living arrangements and the changed nature of the relationship (for example, sleeping separately, separate finances, telling family/friends, and reduced shared domestic life).
What is included in a property settlement?
A property settlement is usually about identifying and dividing the “property pool”, which can include:
- Assets: real estate, vehicles, bank accounts, shares/investments, business interests, personal valuables, and superannuation.
- Liabilities: mortgages, credit cards, personal loans, tax debts, and other financial obligations.
In property proceedings, the Court has power to make orders it considers appropriate regarding property interests. In practice, outcomes can involve assessing contributions and other circumstances (and are very fact-specific), which is why formal advice is important when significant assets/debts or complexity is involved.
Can you settle property before divorce?
Yes. Many people negotiate and formalise their property settlement before applying for divorce — particularly if they want financial certainty earlier, or if they do not plan to remarry soon. Because divorce and property settlement are separate applications, one does not strictly depend on the other.
Joint vs sole divorce applications: what’s the practical difference?
Your existing section covers the basics well. Practically:
- Joint applications are often smoother because both parties cooperate and there is typically less dispute about service/notice.
- Sole applications can still proceed without the other party’s agreement, but the applicant must ensure the other party is properly served with the application documents.
Common misconceptions (quick clarifications)
- “We’re divorced so the assets are split.” Not automatically — divorce ends the marriage, not the financial ties.
- “We can’t do property until we divorce.” You usually can negotiate and formalise property settlement without waiting for divorce.
- “If my spouse won’t sign, I can’t get divorced.” A sole application may still be possible (with proper service).
Next steps if you need help
If you are separated (or considering separation) and want clarity on the difference between divorce and property settlement — including your time limits and options — it can help to get advice early. Early advice can prevent missed deadlines and help you plan a pathway that suits your circumstances.
Contact us
Please contact our office to speak to one of our experienced family law practitioners for professional legal advice regarding your specific circumstances.
Call today on 07 4637 6300.
This article was prepared by Angelika Dearling, Lawyer, with collaboration from Vince Hede, Director and head of the Family Law Team.
Frequently Asked Questions
What is the difference between a divorce and a property settlement in Australia?
A divorce is the legal process that formally ends a marriage and changes your marital status. A property settlement is the process of finalising the financial relationship between spouses by dividing assets, liabilities and (where relevant) superannuation. They are separate legal processes, and getting divorced does not automatically finalise your finances.
Do I need to get divorced before I can finalise a property settlement?
No. You can negotiate and formalise a property settlement without applying for divorce. Divorce and property settlement are made through separate applications, and neither strictly depends on the other. Many couples choose to settle property matters first to achieve financial certainty sooner.
When can I apply for a divorce, and what does “separated under one roof” mean?
You can generally apply for a divorce once you have been separated from your spouse for at least 12 months (and 1 day). “Separated under one roof” means you may still be living at the same address, but the relationship has ended. In those cases, the Court typically requires additional evidence showing you were not living as a couple during that period (for example, separate bedrooms, changed domestic arrangements, separate finances, and telling family or friends about the separation).
What happens if my spouse won’t sign the divorce papers?
A divorce can still be possible without your spouse’s agreement. If you cannot file a joint application, you may file a sole application and arrange to serve the documents on your spouse in line with Court requirements. While a joint application is often simpler, a sole application can proceed even if the other party does not want the divorce.
Is there a time limit to start property settlement or spousal maintenance after divorce?
Yes. If you were married, you generally have 12 months from the date the divorce becomes final to start Court proceedings for a property settlement and/or spousal maintenance. If you miss that deadline, you may need the Court’s permission to proceed out of time, which is not guaranteed.
What assets and debts are usually included in a property settlement?
A property settlement generally considers the overall “property pool”, which may include:
- Assets: real estate (home/investment properties), bank accounts, savings, shares/investments, vehicles, business interests, personal valuables, and superannuation.
- Liabilities: mortgages, personal loans, car loans, credit cards, tax debts, and other financial obligations.
The right approach depends on your circumstances, including what each party owns/owes and how you intend to formalise the agreement.
