A 60/40 divorce settlement in Australia refers to a court-determined division of matrimonial assets in which one spouse receives 60 per cent and the other 40 per cent of the total property pool.
This outcome is not prescribed by statute. Instead, it arises where the Family Court of Australia or the Federal Circuit and Family Court of Australia (FCFCOA) finds that such a division is “just and equitable” under section 79 of the Family Law Act 1975 (Cth).
In practice, the court rarely divides property by formula. It exercises judicial discretion, weighing the parties’ financial and non-financial contributions, future needs, and the overall fairness of the result. A 60/40 division usually reflects material disparity in contributions or post-separation circumstances, not a standard rule.
Is a 60/40 Asset Split Common in Australian Divorces?
No — a 60/40 asset split is not the standard outcome in Australian divorce cases. The Family Court of Australia and the Federal Circuit and Family Court of Australia (FCFCOA) do not apply fixed formulas such as 50/50 or 60/40 when dividing property. Instead, each case is decided on its facts to achieve what is “just and equitable” under section 79 of the Family Law Act 1975 (Cth).
A 60/40 division typically occurs when the court finds material differences in contributions or future financial needs between the parties. For instance, it may arise where one spouse:
- Was the primary income earner, contributing most financially to the asset pool;
- Holds a greater future earning capacity; or
- Made significant pre-marital or post-separation contributions to property or business assets.
Alternatively, a 60/40 split in favour of the other party may reflect non-financial contributions such as homemaking or child-rearing, particularly where those efforts limited that person’s earning potential.
As established in Hickey & Hickey (2003) FLC 93-143, the court must evaluate the totality of contributions and circumstances, not pursue mathematical equality. Therefore, while 60/40 settlements are relatively common in practice, they are never automatic and depend entirely on what fairness demands in each case.
Key Factors Leading to a 60/40 Property Division
The Family Court applies a fact-specific, four-step analysis, informed by s 79(4) and s 75(2) of the Family Law Act 1975. A 60/40 division generally results from the following considerations:
- Length of the relationship — shorter marriages or those with uneven economic input often justify departure from parity.
- Financial contributions — income generation, business operation, or property acquisition made primarily by one spouse.
- Non-financial and homemaking contributions — care of children, household management, and support of the other spouse’s career.
- Future-needs factors — age, health, employability, and ongoing childcare responsibilities.
- Composition of the asset pool — the relative liquidity and value of real property, superannuation, and investments.
Judicial reasoning is always guided by the principle that the final distribution must be fair in substance, not identical in proportion.
How a 60/40 Division Is Calculated in Practice?
In determining property orders, Australian courts follow a structured four-stage process:
- Identify and value the asset pool. All property, liabilities, and superannuation are included.
- Assess contributions. The court evaluates direct financial input, indirect assistance, and domestic labour.
- Apply future-needs adjustments under s 75(2), considering health, income disparity, and child-care duties.
- Consider overall justice and equity. The final order must withstand scrutiny for fairness in both law and outcome.
This process produces outcomes such as 60/40 only where the evidence supports an equitable deviation from equality.
Professional guidance is invaluable — especially for couples with complex financial structures or business assets. A solicitor experienced in family property settlements can explain finding family lawyer services suited to your needs.
60/40 vs 50/50: Distinguishing the Legal Rationale
A 50/50 settlement represents equal recognition of both parties’ contributions. A 60/40 division is applied when fairness requires redress of imbalance.
Typical scenarios include:
- The primary caregiver sacrifices career advancement to raise children.
- One spouse entered the marriage with significant pre-existing assets.
- There is a notable disparity in post-separation income or earning potential.
In Zyk v Zyk (1995) FLC 92-644, the Full Court emphasised that equality is not the starting point — contribution analysis precedes consideration of fairness. Courts will not substitute mathematical equality for equitable discretion.
Family Court Guidelines and Judicial Discretion
Under s 79 of the Family Law Act 1975, the Family Court wields broad authority to determine property settlements. Its guiding inquiry remains whether the proposed order is “just and equitable in all the circumstances.”
This assessment draws upon:
- The extent of financial interdependence during the relationship.
- The custodial and parenting arrangements post-separation.
- The treatment of superannuation within the asset pool.
- The long-term economic consequences for each party.
The Court’s discretion is not unbounded but must align with established case law and equitable principles.
Effect of Children on the 60/40 Outcome
Children are often the decisive factor behind unequal distribution. Where one parent assumes primary care or bears continuing economic disadvantage due to parenting duties, the court may lawfully grant a larger share — frequently 60 per cent — to ensure financial stability.
Sections 75(2)(c)–(d) expressly require the Court to account for future earning capacity and responsibility for dependants. This adjustment ensures that caregiving translates into legal recognition of financial need.
Treatment of Superannuation in a 60/40 Divorce Settlement
Superannuation is legally classified as property, forming part of the divisible asset pool. Under the Family Law (Superannuation) Regulations 2001, the Court may:
- Issue splitting orders allocating a proportion of super benefits.
- Adjust other assets to offset super balances.
- Distinguish between defined-benefit and accumulation funds to reflect real value.
Because superannuation remains preserved until retirement, its treatment requires actuarial valuation and precise drafting. Professional legal and accounting input is critical to prevent adverse tax or compliance consequences.
Financial Consequences for the Primary Caregiver
In many 60/40 outcomes, the 60 per cent share compensates the primary caregiver for reduced earning potential and ongoing child-related expenses.
Courts recognise the economic disadvantage of full-time caregiving — a concept developed in cases such as Clauson (1995) FLC 92-595 and refined through subsequent jurisprudence.
This adjustment aligns with the statutory objective of economic justice between former spouses, rather than mere equality of assets.
Assets Commonly Included in a 60/40 Property Settlement
The property pool encompasses virtually all financial and tangible holdings, including:
- Real estate (family home and investment properties)
- Bank accounts and term deposits
- Superannuation interests
- Shares, managed funds, and trusts
- Business ownership interests
- Vehicles, valuables, and household goods
- Associated debts and liabilities
Under Rule 6.06 of the Family Law Rules 2021, each party owes a duty of full and frank financial disclosure, ensuring transparency before negotiation or litigation.
Challenging a 60/40 Settlement Order
A final property order may be varied or set aside under s 79A where:
- A material non-disclosure of assets is proven;
- There is fraud, duress, or mistake; or
- A significant change in circumstances makes the order unjust.
Courts, however, prioritise finality. Challenges succeed only where the interests of justice clearly outweigh the policy favouring closure of financial disputes.
Obtaining Professional Legal Advice
Every marital breakdown carries distinct factual patterns and financial complexities. Engaging an accredited family-law specialist is essential to:
- Evaluate whether a 60/40 proposal satisfies the s 79 fairness standard;
- Draft or review binding financial agreements; and
- Ensure compliance with disclosure and superannuation regulations.
LegalFinda connects clients to experienced solicitors who advise on equitable strategies and represent parties before the Family Court.
FAQs: 60/40 Divorce Settlement in Australia
Before entering property negotiations, many separating couples seek clarity on how 60/40 settlements operate in law.
What does a 60/40 divorce settlement mean in Australia?
It signifies a court-ordered division where one spouse receives 60 per cent of the net asset pool, grounded in judicial findings of contributions and future needs under s 79 Family Law Act 1975.
Is a 60/40 split standard in divorce cases?
No statutory ratio exists. The Court determines fairness case-by-case, sometimes equal, sometimes unequal, depending on evidence.
Which factors commonly lead to a 60/40 split?
Unequal earnings, caregiving duties, health conditions, and pre-marital property are principal influences.
How is superannuation treated in such settlements?
Superannuation is part of the property pool and may be split by order or agreement, consistent with Family Law (Superannuation) Regulations 2001.
Can a 60/40 settlement be challenged or changed?
Yes, but only under s 79A grounds — fraud, non-disclosure, or material change. Courts rarely reopen concluded property matters.
Do children affect asset division ratios?
Yes. The parent with primary care generally receives a higher share to offset economic disadvantage and ensure child welfare.
Conclusion: Equity, Not Arithmetic
A 60/40 divorce settlement reflects the application of equity within statutory discretion, not a rule or presumption.
Australian courts aim to secure a fair financial outcome that recognises each party’s contributions and future prospects under the Family Law Act 1975 (Cth).
For individuals navigating complex property matters, timely expert legal advice through LegalFinda ensures both procedural compliance and long-term financial protection with access to accredited family law specialists across Australia.
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