What actually goes in the asset pool?

When a married or de facto couple separates in Australia, property is dealt with under the Family Law Act 1975 (Cth), section 79 for married couples and section 90SM for de facto couples. The starting point is a single list of everything either of you owns and owes, whether it is held jointly or in one name: the home, savings, vehicles, businesses, investments, superannuation and debts.

Very little is excluded outright. Inheritances, gifts from family and assets owned before the relationship all go into the pool, and the law recognises them as contributions by the person who brought them in. That usually changes the percentage split rather than taking the asset off the table. Assets held in a family trust can also be counted where one person effectively controls the trust.

Superannuation is treated as property and can be divided by a superannuation splitting order or a superannuation agreement, even though the money stays preserved until retirement age. For many Australian couples, super is the second largest item in the pool after the home, and overlooking it is one of the most common and expensive mistakes.

Debts sit in the pool too, from the mortgage to credit cards and HECS. One caution: lenders are not bound by family-court orders, so if both names are on a loan you each remain liable to the bank until it is refinanced or paid out, whatever your settlement says. Time limits also apply: de facto couples generally have 2 years from separation to apply for a property settlement, and married couples have 12 months from when the divorce order takes effect.