Dividing up property after a separation or divorce can be one of the most stressful parts of the process.
Once an agreement is finalised, either by consent or handed down by the Family Court, it's meant to give both sides a clean break.
No more arguments about who owns what.
Just closure, clarity, and a legally binding decision that lets everyone move on.
These final property settlement orders are intended to be just that, final.
They're legally enforceable, backed by the Family Law Act 1975 (Cth), and usually not open to challenge just because someone has second thoughts.
The court's role is to ensure a fair split of assets, taking into account what each person contributed to the relationship and what they'll need going forward.
But the system isn't blind to reality. Sometimes, serious problems come to light after the ink is dry. Maybe one party hid assets. Maybe someone signed under pressure.
Or maybe a big mistake slipped through during the legal process.
When that happens, the law has a safety valve, Section 79A of the Family Law Act.
Section 79A gives the Family Court power to reopen or tweak a property order if something has gone badly wrong. It's not about relitigating things you regret.
It's about correcting serious injustices, like fraud, suppression of key facts, or unfair pressure. In these rare but important situations, Section 79A ensures that justice can still be done, even after a final order is made.
Section 79A serves a crucial role in maintaining public confidence in the family law system. It upholds the principle that fairness must prevail, even after a matter has seemingly concluded.
For example, where one party discovers hidden investments or undeclared income after orders are made, or where they were pressured into an unfair agreement, Section 79A can offer a legal remedy.
Unified Lawyers, a prominent family law firm in Sydney, has extensive expertise in dealing with the nuanced and often sensitive applications made under Section 79A.
Our firm has successfully assisted clients in a variety of complex scenarios, including cases involving high, net, worth estates, family businesses, and superannuation disputes, where reopening the matter was necessary to rectify a grave injustice.
With over a decade of experience, our team of accredited specialists in family law is highly skilled at investigating potential fraud, assessing legal errors, identifying coercive circumstances, and presenting compelling evidence to support a Section 79A claim.
We take a thorough and strategic approach to ensure clients are fully informed of their rights and have the strongest possible case.
This guide offers a comprehensive explanation of Section 79A : What it is, the legal thresholds that must be met, who is eligible to apply, how the application process unfolds, what to expect at court, and the risks involved.
It is designed to support individuals and professionals who need clarity about post, settlement remedies in Australian family law.
What is Section 79A of the Family Law Act?
Section 79A of the Family Law Act 1975 (Cth) enables the Family Court of Australia to reconsider final property settlement orders in specific and limited circumstances where doing so is necessary to uphold justice.
While the legal system prioritises finality, it also acknowledges that fairness must not be sacrificed in the name of certainty.
Section 79A applies to orders made :
- Under Section 79, for the division of property following the breakdown of a marriage
- Under Section 90SM, which governs property division for de facto relationships
This legal provision grants the court the discretionary power to set aside (cancel) or vary (modify) a financial order where one of the defined grounds, such as fraud, duress, mistake, suppression of evidence, or hardship, can be proven.
Crucially, Section 79A is not a vehicle for rehearing a case simply because a party is dissatisfied with the original decision.
Rather, it is a remedial pathway where something has gone fundamentally wrong that compromises the legitimacy or fairness of the original outcome.
Section 79A plays a pivotal role in reinforcing accountability. It ensures that parties are incentivised to act honestly and transparently during legal proceedings, knowing that deception or coercion could later unravel their advantage.
It also acts as a lifeline for vulnerable parties who, due to mental health issues, domestic violence, or lack of access to legal advice, may have agreed to settlements under unjust circumstances.
For detailed legislative wording and case law interpretation, you can read Section 79A on AustLII.
Purpose of Section 79A
The intention behind Section 79A is to act as a safeguard against injustice in family law proceedings.
Property settlement outcomes significantly affect individuals' financial futures, and if those outcomes are tainted by dishonest or improper conduct, the law provides a way to correct them.
This mechanism is distinct from an appeal. Appeals must be lodged shortly after the order is made and require proof of legal error by the judge.
In contrast, Section 79A focuses on circumstances surrounding the making of the order itself.
It does not require error by the court, but instead looks at how the order came about :
- Was all relevant information disclosed?
- Did both parties freely agree to the settlement?
- Were external pressures or coercion factors?
- Did the court have the full picture when making the order?
Section 79A is a judicial safety net, designed to intervene where fairness has been compromised.
Legal Grounds for Applying Under Section 79A
Under Section 79A(1), a court may vary or set aside a property order in a range of situations.
These include :
1. Fraud or Suppression of Evidence
This ground arises when one party knowingly with holds or falsifies important financial information that would have affected the outcome of the property settlement.
Common examples include concealing :
- Undeclared bank accounts or investments
- Property assets held in third, party names
- Undisclosed business income
- Superannuation funds not mentioned in disclosure documents
Such suppression undermines the foundation of equitable distribution. Courts have consistently held that honest disclosure is a fundamental obligation in family law.
If it later emerges that one party deceived the other or the court, Section 79A may be invoked to rectify the injustice.
2. Duress or Undue Influence
Duress involves threats, coercion, or overpowering influence that leaves a person feeling they have no real choice but to agree.
This can include :
- Threats of physical harm
- Financial control or blackmail
- Emotional manipulation from a partner or extended family
- Cultural or community pressure that impairs free will
Where the court finds that consent was not given voluntarily or was obtained under oppressive circumstances, it may set aside the property orders.
Evidence might include texts, emails, witness statements, or psychological reports.
3. Mistake (Fact or Law)
Errors about material facts, such as the value of an asset, ownership of debts, or employment income, can justify reopening an order.
Mistakes of law, such as misunderstanding how a superannuation split functions or incorrect tax assumptions, may also suffice.
For instance, If parties agreed to a property division based on a mistaken belief that a trust was not part of the asset pool, but later evidence reveals otherwise, the court may determine that the order was made on an erroneous basis.
Supporting documents such as revised financial statements, corrected legal advice, or new expert assessments are often critical.
4. Lack of Procedural Fairness
Procedural fairness, also known as natural justice, is central to all legal proceedings.
If a party :
- Was denied an opportunity to respond to claims
- Did not receive key documents
- Lacked the ability to access or present evidence
- Had language or cognitive barriers without adequate support
... the resulting order may be tainted by unfairness. Section 79A enables the court to revisit such outcomes and ensure both parties were given a fair hearing.
5. Hardship (s79A(1)(d))
Hardship refers to circumstances where a party or child suffers significant disadvantage as a result of the order, especially when those circumstances were not adequately considered.
Examples include :
- A party becoming seriously ill and financially vulnerable
- A child developing special needs requiring increased care and financial support
- Market changes or asset losses significantly affecting one party
The court uses this ground with caution and typically requires substantial evidence showing that the hardship is real, significant, and caused (or worsened) by the original order.
6. Consent Orders Obtained Improperly
Consent orders must reflect a genuine, informed, and voluntary agreement.
They may be invalidated where :
- One party did not receive proper legal advice
- There was a misunderstanding of the terms or their effect
- One party lacked mental capacity or was under duress
- Material facts were not disclosed before agreement
In such cases, the court may find that the agreement was not truly consensual, particularly if the financial outcome was disproportionately beneficial to one party.
Examples of Section 79A in Action
To illustrate how Section 79A operates in practice, consider the following real and hypothetical case summaries :
1. Hidden Superannuation Account
In a hypothetical scenario, let's say a husband deliberately failed to disclose a substantial superannuation account worth over $200,000 during property settlement proceedings.
After the final orders were made, the wife later discovered the account through a tax document.
If this were to happen in real life, the Family Court could find that the non, disclosure amounted to fraud or suppression of evidence, one of the key grounds under Section 79A.
The court might then decide to vary the original order to include the hidden superannuation asset, ensuring a fairer division of property.
2. Duress Due to Family Pressure
Sometimes a party may sign consent orders not out of genuine agreement, but because of overwhelming emotional or cultural pressure from family members.
This can impair their ability to make independent decisions.
If the court finds that consent was not freely given, such as when a person feels they have no choice but to comply, it may set aside the orders on the grounds of duress or undue influence.
3. Mental Health Crisis During Settlement
Where a party is suffering from a serious mental health condition at the time of negotiation or agreement, they may lack the capacity to understand the nature and effect of the orders.
If the court is satisfied that a person was not capable of giving informed consent due to mental illness or did not receive adequate legal advice, it may reopen the matter under Section 79A to ensure fairness.
4. Hypothetical Example: Business Valuation Error
Imagine a scenario where a wife agrees to a 60, 40 split of property based on the valuation of a family business.
Months later, a financial audit reveals that the business was undervalued by over $500,000 due to errors in accounting.
This could provide a strong basis for a Section 79A application based on mistake or suppression of evidence.
Who Can Apply Under Section 79A?
Applications under Section 79A may be made by :
- Any party to the original property order (i.e. former spouses or de facto partners)
- Legal representatives acting on behalf of children, minors, or persons with impaired decision, making capacity
- Trustees in bankruptcy, when the financial interests of creditors are impacted by a potentially unjust property division
Applicants do not need permission from the other party to initiate the process, but must serve them with a copy of the application and supporting documents.
What Happens After a Section 79A Application?
The process of challenging a final property settlement order under Section 79A commences with filing an application in the Family Court.
This is typically accompanied by one or more supporting affidavits that provide detailed evidence justifying the request to reopen the matter.
These documents should :
- Clearly identify the existing property orders being challenged
- Specify the legal grounds under Section 79A being relied upon (e.g., fraud, mistake, duress)
- Present factual details that substantiate the claim (e.g., bank statements, correspondence, psychological reports)
- Explain why the remedy sought, either variation or setting aside of the orders, is appropriate and necessary
Additionally, parties should consider attaching a draft of the proposed new orders or settlement, if seeking variation, to demonstrate the practical outcome they are aiming to achieve.
Legal advice is strongly recommended before lodging, as applications lacking sufficient detail or clarity may be struck out early in proceedings.
Case Management Hearing
Once the application is accepted, the court usually schedules a case management hearing.
- This preliminary step helps the court and the parties to :
- Define the issues in dispute and ensure they fall within the scope of Section 79A
- Establish a timeline for the filing and exchange of affidavits and evidence
- Identify whether financial disclosure has been completed or requires further supplementation
- Determine whether expert reports (e.g., property valuations or psychological assessments) are necessary
- Encourage negotiation or refer the matter to mediation to explore early resolution
This stage is crucial for setting the tone and structure of the proceedings. It also allows the judge to address procedural fairness and avoid unnecessary delays.
Disclosure and Expert Evidence
In many Section 79A matters, especially those involving hidden assets or allegations of mental incapacity, extensive disclosure and expert input are critical.
Courts may direct :
- Supplementary disclosure of financial records, tax returns, superannuation balances, or business accounts
- Valuation of assets, particularly real estate or business interests, to ensure the court works with accurate data
- Psychological or psychiatric reports if claims of duress, mental illness, or coercion are involved
Independent experts may be jointly appointed to promote objectivity. These professionals help clarify complex factual questions that are central to the case.
Outcomes: Variation vs Rehearing
After assessing the evidence, the court may take one of two main actions :
- Vary the existing order : This approach is used when only part of the original order is affected by injustice. For example, if a previously undisclosed asset is discovered, the order may be adjusted to reflect a fairer distribution.
- Set aside the original order : Where the entire settlement is compromised, such as by systemic fraud or lack of capacity, a full rehearing may be ordered. This means the property division is reconsidered from scratch, based on the current situation and full disclosure.
In either scenario, the court must balance the interests of finality in litigation with the need to ensure justice.
Remedies are crafted with a focus on correcting the identified injustice without reopening matters unnecessarily.
Risks and Considerations
1. Costs Implications
Section 79A applications are inherently complex and may result in considerable legal costs.
This includes not just solicitor and barrister fees, but also expenses related to gathering evidence, such as valuation reports, forensic accounting, and medical or psychological assessments.
Legal costs can escalate if the case proceeds to a contested hearing.
Importantly, if the application is unsuccessful or considered to lack merit, the applicant may be ordered to pay the other party's legal costs under the Family Law Rules.
The court considers factors such as the reasonableness of the application, the conduct of both parties, and whether any settlement options were rejected unreasonably.
In some instances, a costs order could amount to tens of thousands of dollars, so it's essential to obtain legal advice early and evaluate the strength of your claim.
Applicants should also weigh the cost, benefit ratio, especially in lower, value estates, as the financial gain from a successful variation may be offset by legal expenses incurred.
2. Burden of Proof
The burden of proof in a Section 79A application lies squarely with the applicant. They must establish, on the balance of probabilities, that one or more of the statutory grounds have been met.
This standard requires showing that it is more likely than not that a miscarriage of justice occurred, whether due to fraud, mistake, or other listed grounds.
Meeting this burden requires clear, persuasive, and often independently verifiable evidence.
For example, Bank statements revealing undisclosed accounts, expert medical reports substantiating mental incapacity, or emails indicating coercion can be instrumental.
Courts will not act on speculation or mere dissatisfaction with the original order; a detailed factual and legal basis must be provided.
A well, prepared affidavit that aligns facts with the statutory framework is critical, and legal assistance is strongly recommended to ensure the burden is properly discharged.
3. Parenting Matters
It's essential to understand that Section 79A applies only to property settlement orders.
It has no effect on parenting orders or custody arrangements.
If your dispute involves parenting matters, such as living arrangements, visitation, or parental responsibility, you will need to rely on separate provisions of the Family Law Act, including :
- Section 65D, which allows courts to vary existing parenting orders, and
- Section 60CC,which outlines the best interests of the child as the primary consideration
Parenting disputes are governed by different legal principles, focused on the welfare of the child rather than financial fairness.
Legal advice should be sought to determine which legal remedy is appropriate for your circumstances.
4. Alternative Legal Options
Before pursuing a Section 79A application, it's wise to explore whether other legal avenues might be more efficient or appropriate.
Depending on the situation, you may consider :
- Appealing the original decision : If the issue relates to a legal or procedural error made by the judge, filing an appeal (within 28 days of the original order) may be a more suitable remedy.
- Applying to vary consent orders : If your situation has changed significantly since the order was made (e.g., job loss, illness, or financial hardship), the court may allow you to vary the existing orders without needing to prove the grounds required under Section 79A.
- Negotiating a binding financial agreement (BFA) : If both parties are open to renegotiation, a BFA can be used to override previous arrangements and create new legally binding terms, provided both parties receive independent legal advice.
Each alternative has its own advantages, risks, and procedural requirements.
Engaging a family lawyer will help you choose the most effective strategy tailored to your goals and legal position.
Frequently Asked Questions
1. Can I set aside a consent order?
Yes, you can apply to set aside a consent order under Section 79A if you can prove that it was obtained through improper means, such as fraud, duress, suppression of evidence, mistake, or another reason that has resulted in a miscarriage of justice.
Common scenarios include one party hiding assets during negotiations, coercion to sign under pressure, or misunderstandings due to lack of proper legal advice.
The courts apply strict scrutiny when reviewing consent orders, especially where parties did not have independent legal advice or where power imbalances exist (e.g., due to family violence, mental illness, or financial dependency).
If successful, the court may either vary the existing order or set it aside and rehear the matter to ensure fairness.
2. Is there a time limit for a s79A application?
There is no fixed time limit prescribed by statute, but the court expects parties to act without undue delay.
Delayed applications must be accompanied by a compelling explanation for why the issue was not raised sooner.
The longer the delay, the more difficult it becomes to convince the court that intervention is warranted.
The court may also consider whether parties have acted in reliance on the original order, for example, by remortgaging property or distributing superannuation entitlements, which may weigh against reopening the case.
3. What's the difference between an appeal and a s79A?
An appeal challenges the legal correctness of the original decision.
It focuses on whether the judge made a legal or procedural error and must generally be filed within 28 days of the order.
A Section 79A application, by contrast, examines the fairness of the process leading to the order, such as whether there was full disclosure, consent was truly informed, or procedural safeguards were followed.
It does not require any judicial error. Instead, it deals with injustice arising from the conduct of the parties or extrinsic factors.
4. How do I prove fraud or non, disclosure?
Evidence is crucial. Courts will expect detailed documentation or testimony demonstrating that material facts were knowingly withheld or misrepresented.
This might include :
- Bank or investment account statements not disclosed during proceedings
- Superannuation fund balances that were omitted from affidavits
- Communications proving deliberate concealment (e.g. emails or text messages)
- Witness statements confirming the other party's knowledge of hidden assets
The court may also rely on forensic accounting reports or subpoenas to uncover hidden financial information.
The standard of proof is "on the balance of probabilities," but the seriousness of allegations like fraud demands strong and compelling evidence.
5. Can I vary the order instead of setting it aside?
Yes, if only part of the property settlement is affected (e.g. one asset was not disclosed, or a particular clause was misunderstood), the court can vary the order instead of setting it aside entirely.
This is often a more efficient and less disruptive remedy.
In deciding whether to vary or set aside, the court will consider the extent of the injustice, the nature of the error or omission, and whether the rest of the order remains fair and workable.
This approach helps preserve finality where appropriate, while still correcting elements that would otherwise create an unjust result.
How Unified Lawyers can help
Challenging a property settlement under Section 79A of the Family Law Act can be a complex and high, stakes legal matter.
Whether you're facing issues such as non, disclosure of assets, duress, or a fundamental mistake in your original property orders, our experienced family law specialists are here to provide strategic legal advice tailored to your circumstances.
At Unified Lawyers, we understand the importance of discretion, detail, and expert guidance in these matters.
Our team of family lawyers includes Law Society of NSW Accredited Specialists with extensive experience in managing Section 79A applications, particularly those involving significant property pools, family businesses, superannuation interests, and emotionally charged negotiations.
We work alongside forensic accountants, property valuers, and other financial experts to build compelling evidence and advocate for a fair and just outcome.
Our process is thorough, compassionate, and designed to protect your rights while minimising additional stress.
If you believe your property order is unjust and you want a legal team who can fight for a better outcome, get in touch with us today. We'll help you assess your options and take the right legal steps toward correcting an unfair settlement.
Section 79A of the Family Law Act is a vital tool for parties seeking to overturn unjust or improperly obtained property settlement orders.
Whether you're dealing with undisclosed assets, coercive agreements, or factual mistakes, it's important to explore your legal options promptly.
Engaging a lawyer experienced in Section 79A matters is crucial for navigating the procedural complexities and maximising your chances of success.
Unified Lawyers has helped numerous clients set aside or vary unfair property settlements through careful strategy, detailed evidence gathering, and expert representation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
