Most people assume that once a relationship ends, the pool gets divided and the only question is the percentage. For most separations that assumption is close enough to right. It is not the law, and the difference matters at the edges.

Section 79 of the Family Law Act gives a court power to alter property interests. The power comes with a condition: the court must not make an order unless it is satisfied that, in all the circumstances, it is just and equitable to do so.

Why this matters to ordinary separations

In most cases the requirement is met without argument. Where a couple has separated by choice, their financial relationship has usually ended along with the marriage, and it is obvious that leaving the property where it happens to sit would not be fair. The court says so and moves on.

The threshold decides the unusual cases, and there are more of those than people expect.

  • Couples who separated but kept their finances genuinely separate for years, each holding what they always held.
  • Short relationships where each person came in with their own assets and left with them intact.
  • Separations caused by illness or incapacity rather than by a decision to end the relationship.
  • Matters brought long after separation, where the parties have been financially independent for a decade or more.

The four steps, and where the threshold sits

Practitioners often describe property settlement as a four-step process: identify the pool, assess contributions, consider current and future circumstances, and check that the result is just and equitable. Stanford makes clear that the just and equitable question is not only that last check. It is also a gateway at the start.

That reasoning is now largely written into section 79 itself, which since June 2025 tells the court to identify existing interests and liabilities first, and only then to work through contributions and current and future circumstances. The threshold survived the rewrite untouched.

None of this is a reason to walk away from a claim. It is a reason to be able to answer the first question a judge will ask, which is not how much, but why.