What Am I Entitled to in a Separation in Australia? | Will You Lose Half of Your Wealth?
10/06/2025
“What am I entitled to in a separation in Australia” is often the first question people ask when a relationship ends. Understanding this part of the separation process is crucial, particularly when you’ve spent years building financial assets with your partner.
Australian family law provides a structured yet discretionary process that considers each person’s unique circumstances. The goal is to reach a fair outcome that reflects individual contributions, responsibilities, and future needs.
This guide outlines each part of that process. It explains how property, superannuation, debts, parenting arrangements, and financial support are handled in Australia. Along the way, it addresses common misconceptions and provides practical examples to help you understand what you may be entitled to.
There Is No Automatic 50/50 Split
The idea of a clean 50/50 split feels logical, especially when both partners have shared years of life, work, and family. However, this is not how Australian family law works.
Instead of a fixed formula, the law focuses on what is just and equitable (Family Law Act 1975), in your specific circumstances. This means your entitlements are not determined by a calculator. They are shaped by your contributions, your current circumstances, and your future needs.
Five Legal Steps That Shape a Fair Separation Framework
When a court is asked to decide on the division of property, it follows a five-step process:
- Consider whether a property settlement is appropriate.
The court first decides if it needs to intervene. For example, if a couple shared a home for a long time, a property settlement is likely appropriate. If there are no shared assets in a short relationship, the court may decide that no formal division is needed. - Identify the property pool.
This includes all assets and debts owned by either or both parties; acquired before, during, or even after the relationship if they are relevant. - Assess the contributions made by each party.
While the first step determines if a property adjustment is needed, this step focuses on how the shared property was built. The court examines both financial contributions (such as income, savings, or property brought into the relationship) and non-financial contributions (such as homemaking, parenting, or supporting a partner’s career). All the contributions each of the party’s made are assessed holistically. - Evaluate the future needs of each party.
The court considers factors such as age, health, earning capacity, and care of children and whether any further adjustment is required. - Ensure the proposed outcome is fair and equitable.
After considering all of the above, the court makes a final assessment of whether the division is reasonable.
Fairness Over Equality – Here is a Common Example
Consider this theoretical example. Michael and Sarah were married for 14 years. Michael worked in finance and earned a high income, while Sarah left her career after their second child was born to manage the home and care for the children full-time. When they separated, Sarah had limited recent work experience and no superannuation of her own.
Although they initially assumed a 50/50 split would be appropriate, their lawyer advised otherwise. After assessing Sarah’s role as the primary carer for the children and her reduced earning capacity, a 65/35 division in her favour was considered more appropriate. This adjustment gave Sarah a stronger financial base to support the children and rebuild her career.
Core Entitlements in an Australian Separation
Division of Property and Assets
In Australian family law, the first step after separation is identifying the property pool. This includes all assets and debts, regardless of whose name they are in.
Included in the property pool:
- Family home and investment properties
- Vehicles, savings, and investments
- Superannuation
- Business interests and trusts
- Loans, mortgages, and other debts
The court considers both financial and non-financial contributions, such as income, homemaking, or parenting. It also weighs each party’s future needs, including age, health, earning ability, and care of children.
Therefore, division of property is not always a 50/50 split, there are other considerations that may impact the final result. All to ensure no one is disadvantaged considering their unique circumstances.
For other common separation scenarios, visit our guide on 70/30 Divorce Settlement in Australia.
Spousal Maintenance
Spousal maintenance is financial support paid by one partner to the other after separation. It applies when one person cannot meet their reasonable living expenses and the other has the capacity to help.
For this aspect, the court considers:
- Income and financial resources
- Age, health, and ability to work
- The effect of any family violence
- Care of children including the need to provide appropriate housing for children
- If the relationship affected a party’s ability to earn an income
Spousal maintenance case example:
After an 18-year marriage, Sarah had no recent work experience due to full-time caregiving. Her former husband, Michael, who earned a high income, was ordered to provide monthly support for three years while Sarah retrained and returned to part-time work.
Maintenance can be paid for a limited time or on an ongoing basis, depending on the circumstances.
Tip: Applications must be made within 12 months of divorce or 2 years of de facto separation unless the court provides leave to apply out of time.
Parenting Arrangements and Child Custody
When children are involved, Australian law focuses on their best interests, not parental entitlement. Often but not always both parents share parental responsibility, meaning they must make major decisions jointly. This includes schooling, health, and living arrangements.
Time with each parent is negotiated based on what is safe, and appropriate given the child’s developmental needs. Equal time is not always appropriate, especially if one parent has been the primary carer or the child is very young. The court considers the child’s views, depending on their age and maturity, alongside other best interest factors.
Parenting arrangements case example:
After separating, Sarah remained the main caregiver for her two young children. Michael was granted regular weekend and holiday time. The court approved this arrangement as it maintained strong relationships while minimising disruption to the children’s routine.
Parents are encouraged to agree on arrangements through a Parenting Plan. If agreement is not possible, the court may issue a Parenting Order based on evidence and what supports the child’s wellbeing.
Tip: Parenting Plans are informal and flexible. Parenting Orders are legally binding and enforceable.
Child Support
Child support ensures that both parents share the financial responsibility of raising their children after separation. In Australia, it is managed by Services Australia using a formula that considers:
- Each parent’s income
- The amount of time the child spends with each parent
The cost of raising children in Australia is based on the principle that separated parents have the primary duty to financially care for their child. Payments can be collected and transferred through Services Australia, or managed privately if both parties agree and are able to cooperate.
Child support case example:
Since Michael earns more and has the children less than 50 percent of the time, he is required to pay child support to Sarah. The amount may change if their care arrangements or incomes are updated.
Child support is separate from parenting orders. It does not cover all expenses, so Michael and Sarah also agreed to share additional costs like school fees and medical bills through a private arrangement.
Superannuation Splitting
Superannuation is treated as part of the property pool during separation, even though it remains inaccessible until retirement. It can be split between parties through a formal agreement or court order.
This helps balance entitlements when one partner has significantly more super than the other, often due to career breaks for caregiving.
Superannuation splitting case example:
In their long-term relationship, Michael had $400,000 in superannuation while Sarah had $80,000. As part of the settlement, $120,000 was transferred from Michael’s super to Sarah’s fund, helping to balance their retirement savings without affecting the immediate cash assets available to either of them.
Super splitting does not require the super to be withdrawn. It is rolled over into an account for the person receiving the superannuation split and is preserved until it becomes eligible for release under superannuation law.
Division of Debts and Liabilities
Just like assets, debts are included in the property pool and must be considered during settlement. This includes:
- Mortgages
- Personal or car loans
- Credit card debt
- Business or tax liabilities
- HELP debt
The court looks at who incurred the debt, for what purpose, which asset (if any) that the debt is linked to and each party’s ability to repay.
Division of debt and liabilities case Example:
After separating, Michael and Sarah had a $20,000 credit card debt used for family expenses. Even though the card was in Michael’s name, the court treated it as a joint liability and included it in the property settlement.
If no legal agreement is made, one party may be left solely responsible for debts that were incurred for mutual benefit. A binding financial agreement or consent order provides clarity and legal protection.
Common Questions Answered
Do I need a lawyer if we agree on everything?
Legal representation is strongly recommended. Even if you and your former partner agree on matters concerning the separation, a lawyer can ensure the agreement is legally sound, protects your rights, and prevents future disputes. Without formal documentation, verbal or informal agreements may not be enforceable.
Can we separate while still living in the same house?
Yes. This is known as separation under one roof. You must be able to show that the relationship has ended, even if you still live together for financial, parenting, or logistical reasons. Evidence may include separate finances, social arrangements, and communication records.
What if my former partner refuses to negotiate or disclose assets?
If informal negotiations are not possible, you may use mediation or apply to the court. Each party is legally required to provide full and frank financial disclosure. Hiding assets can lead to penalties and affect the final outcome.
What happens if we own a business together?
Business interests are treated as part of the property pool. The business may be valued or sold, or one party may retain it by offsetting the other’s share through other assets. The structure of the business, ongoing income, and both parties’ roles will be considered.
Fair Outcomes Begin with Clear Communication
Separation is never easy, but the right information and clear communication can make a difficult situation more manageable. Every situation is different. The law provides a clear structure to guide you toward a fair result. However, if you are unsure about your next steps or want to ensure your rights are protected, you are welcome to contact our team for guidance. We are here to help you make informed, confident decisions with your future in mind.