In Australia, yes, it is legally possible to finalise your divorce before completing the property settlement; however, this approach requires careful consideration of the potential consequences and benefits.

Understanding Divorce and Property Settlement


Divorce is the dissolution of a marriage by a court. Once granted, it officially ends the personal relationship between spouses. 

In Australia, a divorce can be applied for only after a mandatory separation period of 12 months. 

When the parties have lived separately and apart for 12 months the court accepts that fact as evidence that the marriage has irretrievably broken down. 

Irretrievable breakdown has been the sole ground for divorce in Australia since 1976.

Property settlement, on the other hand, involves the distribution of assets and liabilities between the spouses following the breakdown of their marriage or de facto relationship.

Real estate, investments, savings, and debts belonging to the parties are divided between them in this process. 

The goal of a property settlement is to achieve a fair and equitable division as per the Family Law Act 1975, considering various factors like the property available for distribution, the duration of the marriage, contributions by each party, future needs of the parties and fair and equitable considerations.

Divorce is a stand-alone proceeding either by way of a single or joint application to the court. 

The only requirement to be eligible to apply is that the parties have to be separated for 12 months. 

Once a divorce order is granted by the Registrar, there is a cooling off period of 30 days after which the order becomes final.  

Spouses can begin property settlement negotiations as soon as they decide to separate and can finalise these arrangements any time before or after the divorce is granted. 

However, once the divorce is finalised, parties have a time limit of 12 months to initiate property settlement proceedings if no agreement has been reached earlier. 

Failing to meet this deadline will result in permission or leave having to be obtained from the court to make an application out of time.

It is important to manage the timing of both processes, as decisions in one area can significantly impact outcomes in the other.


  • Speed and Closure: Finalising a divorce before settling property can sometimes expedite the emotional closure from the marriage, allowing individuals to move forward.
  • Simplicity in Certain Cases: For couples without significant shared assets or where prenuptial agreements are in place, finalising the divorce first might simplify the proceedings.


  • Financial Uncertainty: Completing the divorce before property settlement may lead to financial uncertainty. Without a formal settlement, one party may find it difficult to make long-term financial plans, as the distribution of assets remains undecided.
  • Legal Complications: There is a risk of legal complications if the property settlement is delayed until after the divorce. For example, if one spouse’s financial situation changes dramatically post-divorce, it could affect the fairness and outcome of the settlement.
  • Time Pressure: The 12-month time limit to initiate property settlement proceedings after divorce adds pressure and may force parties to settle hastily or inadequately.

Choosing whether to divorce before settling property should be done with consideration of these factors, ideally with guidance from a legal professional. 

In our experience having a property settlement first is a safer option.

Ready to start the divorce process? Find out how to get a divorce in Australia.

Although you can choose to divorce before property settlement, you may choose to settle property issues before finalising the divorce. 

This invariably simplifies the process as there is no pressure of having to race against time to get a settlement done before the time limit. 

Getting divorced first compels parties to rush to court to preserve the limitation date.

It can also provide:

  • Clarity and Certainty: Resolving financial issues early provides both parties with clarity and certainty about their financial futures, which can reduce stress and conflict during divorce proceedings.
  • Emotional Relief: Finalising the financial aspects early in the separation process can provide emotional relief, allowing both parties to move forward and focus on adjusting to their new lives separately.

Completing property settlement before the divorce can often reduce the likelihood of prolonged disputes and emotional stress.

Property Settlement After Divorce: Time Limit

Limitation Date

After a divorce is finalised in Australia, there is a strict statutory time limit within which former spouses must initiate property settlement proceedings

You have 12 months from the date your divorce becomes final to finalise a property settlement by consent or commence proceedings.

Failing to meet this deadline will result in having to first obtain the leave or permission of the Court to issue proceedings out of time. 

Such leave is granted sparingly and subject to the discretion of the Court.

There are certain circumstances under which the standard time limits for initiating property settlement proceedings may be extended or exceptions applied. These include:

  • Hardship: If you can demonstrate that failing to extend the time limit would cause you or a child significant financial hardship, the court may consider granting an extension.
  • Consent of Parties: Both parties can agree to extend the time limit by signing a formal agreement. This is typically handled by legal representatives to ensure that the extension is legally binding.
  • Court Discretion: The court has the discretion to allow an application outside the usual time limits if it believes it is just and equitable to do so. This usually requires proving that exceptional circumstances prevented an earlier application.

These exceptions are not granted lightly, and the burden of proof lies with the person seeking the extension. It’s advisable to initiate property settlement proceedings well within the standard time limits to avoid the complexity and uncertainty of seeking an extension.

How to Navigate Property Settlement Efficiently

Seeking Legal Advice

Consulting with a legal professional is crucial during both the divorce and property settlement processes. 

A legal expert can provide essential guidance on your rights and obligations, help you understand family law, and ensure that all legal documents are correctly prepared and submitted. 

Legal advice is invaluable for making informed decisions. 

Whether you’re facing the initial stages of a divorce or you’re deep into property settlement negotiations, the right legal assistance can make all the difference. 

Contact Stanford Legal for expert advice and representation.

Our experienced family law team are ready to guide you through every step. 

Book a free consultation today to learn more about how we can help!