What happens to the mortgage when you separate in Australia?

Both parties remain jointly liable for the home loan until it is formally refinanced into one name, sold, or discharged. Joint liability continues regardless of who is living in the property or paying the mortgage. This can affect both parties' borrowing capacity for any new property until the matter is resolved.

Can I refinance a home loan into my name only after separation?

Yes, it is possible to refinance a jointly held home loan into a single name following separation. The person keeping the home needs to demonstrate they can service the loan independently. This typically involves a new credit assessment, updated income verification, and a formal property valuation. A mortgage broker can assess your individual position and identify suitable lenders.

How does a property settlement work in Australia?

Property settlements in Australia are formalised through either Consent Orders (filed with the Family Court) or a Binding Financial Agreement. Both options outline how assets and liabilities are divided. A family law solicitor should guide this process. Your mortgage broker works alongside your legal team to ensure the finance side is structured correctly once the legal agreement is reached.

How does child support affect borrowing capacity after separation?

Child support payments you make are treated as a financial commitment by lenders and reduce your borrowing capacity. Child support received may be counted as income by some lenders, depending on the lender's policy and how it is documented. A broker can identify which lenders treat child support most favourably for your situation.

Do I need consent orders before I can refinance?

Not always. Some lenders will proceed with a refinance based on a separation agreement or Binding Financial Agreement, while others require Consent Orders to be in place. The exact requirement depends on the lender and the specifics of your situation. Your broker can identify which lenders are most practical for your timeline.

What is a partner buyout and how does it work?

A partner buyout is when one party refinances the home loan to pay out the other party's equity share and take sole ownership of the property. The new loan amount covers the existing loan balance plus the partner's equity entitlement, plus any associated legal or transfer costs. The new loan is assessed on the single applicant's income and financial position.

How Does a Property Settlement Work in South Australia?

By Jason Given · April 2026 · 5 min read

A property settlement is the legal process of dividing assets and liabilities between separating partners. In Australia, this can be formalised through Consent Orders (filed with the Family Court) or a Binding Financial Agreement (BFA). Both are legally enforceable - the difference is in how they are made.

Consent Orders vs Binding Financial Agreement

Consent Orders are approved by the Family Court. Both parties must agree to the terms, and the court checks that the arrangement is just and equitable. Once approved, they are court orders and fully enforceable. Most property settlements in Australia use this path.

A Binding Financial Agreement is a private contract between the parties, prepared by lawyers. Each party must receive independent legal advice. BFAs are faster than consent orders but can be challenged in court if proper process was not followed.

How the asset pool works

The first step is identifying and valuing all assets and liabilities - property, superannuation, savings, debts, vehicles, businesses. The total is the asset pool. The settlement determines how this pool is divided, taking into account each party's financial and non-financial contributions, future needs, and caring responsibilities.

Where finance fits in

The finance side - refinancing the mortgage, funding an equity buyout, or securing a new loan - is the mechanism that makes the settlement work. Knowing what you can borrow before finalising the legal agreement is critical. There is no point agreeing to keep the house if the refinance will not be approved on your income alone.

At Lendology, we work alongside your family lawyer to confirm what is financially achievable before you commit to settlement terms. This avoids the situation where a signed agreement cannot be implemented because the finance does not stack up.

Source: Family Court of Australia - fcfcoa.gov.au. Always seek independent legal advice before entering into any property settlement agreement.

Frequently asked questions

Do I need a lawyer for a property settlement?

While not legally required for a BFA, it is strongly recommended. Consent Orders require court filing. A family lawyer ensures your interests are protected and the agreement is enforceable.

How long does a property settlement take?

Typically 3 to 6 months from initial negotiation to finalised orders. Complex cases with business interests or disputed assets can take longer. The finance side usually takes 4 to 8 weeks once terms are agreed.

How Does a Property Settlement Work in South Australia How Does a Property Settlement Work in South Australia?