A guide to separation entitlements in Australia

Wondering ‘What am I entitled to in a separation in Australia?’. Knowing the answer to this question is essential for anyone who has decided to close the chapter on their relationship.

Separation is a stressful period for any individual. Not to mention the added financial complexity of navigating the Family Law process in circumstances where emotions are already strained. Therefore, it’s important to understand your legal rights, obligations and options — whether you are married or in a de facto relationship.

At BDN Lawyers, we have been helping our clients in the Queanbeyan and Canberra region for over 160 years, providing expert advice with a personal touch. In this guide, we’ll explain separation and divorce entitlements in Australia. Keep reading to discover the pathways available to parties to resolve their property matters, with a focus on alternative dispute resolution.

What am I entitled to in a separation in Australia?

In Australia, what you are entitled to in a de facto separation or divorce is determined within the context of the Family Law Act 1975 (Cth). This piece of legislation governs the division of property amongst separated parties and aims to achieve an outcome that is “just and equitable” – taking into account financial and non-financial contributions, future needs and the total financial position of both parties.

Important considerations include:

  • The value and structure of the assets, liabilities and financial resources in the asset pool
  • The financial and non-financial contributions made by each party
  • The future needs of each party, including age, health, and capacity to earn an income
  • Parenting responsibilities and care of children
  • Any binding financial agreement

Let’s take a closer look at each factor the Court examines when determining what each partner may receive in a property settlement.

How does the Court decide who gets what in a property settlement?

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The Court uses a four-step process to determine how assets and liabilities are to be divided:

Property pool

The first step is to identify and value the asset pool. The “property pool” refers to all assets, liabilities, and financial resources held by either or both partners at the time of separation or proceedings, regardless of whose name they are in.

Examples include:

  • Real estate (family home, investment properties)
  • Vehicles and household contents
  • Superannuation (considered property under section 90MC of the Family Law Act)
  • Bank accounts, shares, trusts, and business interests
  • Debts and liabilities (e.g. mortgages, credit cards, personal loans)
  • Financial resources such as future inheritances, compensation payouts, or interests in a trust

The value is broadly based on current value, not purchase price or historical worth. Each party must fully disclose their assets and liabilities through the Financial Disclosure process. This generally involves exchanging financial material applicable to the parties on a full and frank basis. Failing to do so can affect the outcome of the settlement, or could render any settlement or Orders invalid should they be called into question.

Contributions

The Court considers all contributions made during the relationship, including:

  • Financial contributions:
    • Income earned by both parties through employment or business
    • Assets brought into the relationship (e.g. a home owned before the relationship)
    • Gifts or inheritances received during the relationship
    • Payment of household expenses, mortgage or renovations
  • Non-financial contributions:
    • Unpaid domestic work such as cooking, cleaning and home maintenance
    • Managing finances or family business administration
    • Helping a partner’s career, such as unpaid admin work
    • Contributions to the welfare of the family:
    • Parenting and emotional support
    • Acting as the primary carer of the children
    • Maintaining a stable home environment

Please note that non-financial contributions are given equal weight to financial contributions. For example, a stay-at-home parent is not seen as contributing any less than the primary financial income earner.

This is especially important in longer relationships or where one party has sacrificed career progression for family responsibilities.

Future needs

Once contributions are assessed, the Court adjusts the proposed division of assets based on the likely future needs of each party. The goal is to avoid long-term financial disadvantage.

Key factors considered include:

  • Age and health – Does either partner have a medical condition that affects their earning capacity or care needs?
  • Earning capacity – Will one party struggle to re-enter the workforce or earn significantly less?
  • Care of children – If one partner is the primary carer of dependent children, their income and flexibility may be impacted.
  • Standard of living – The Court tries to prevent one party from experiencing a sharp decline in standard of living post-divorce/separation.
  • New relationships – If one partner is living with a new partner who contributes to their finances, this may affect their need for an adjustment.
  • Access to resources – Inheritances, family support, or ownership of high-yield assets may be relevant.

Just and equitable split

After considering the asset pool, contributions, and future needs, the Court must decide if the overall division is “just and equitable” — this is a legal requirement under section 79(2) of the Family Law Act.

Just and equitable does not mean equal. The Court will consider whether both parties walk away with a ‘just and equitable result, taking into account everything above.

Am I entitled to half of my partner’s superannuation if we separate?

You may be entitled to a portion of your partner’s superannuation as part of the total asset pool, but not necessarily half.

Super is treated as property under the Family Law Act 1975 and can be split either by agreement or Court order.

  • Factors affecting this split include:
  • Total value of your and your partner’s superannuation
  • Length of the relationship
  • Other financial and non-financial contributions
  • Future needs of each party

A Court Order, Consent Order, Binding Financial Agreement or superannuation splitting order may be used to formalise how super is divided.

Will I have to pay spousal maintenance after separation?

You may have to pay spousal maintenance if your ex-partner cannot support themselves adequately, and you have the capacity to provide financial assistance.

However, spousal maintenance is not automatic. Rather, the Court will assess:

  • Whether the individual can work or earn an income
  • Age, health and care of children
  • Whether there was a significant financial disparity between the parties during the relationship

Under section 75 of the Family Law Act 1975, spousal maintenance may be paid in a lump sum or regular payments. The duration and amount vary case-by-case, especially if the party has a reduced earning capacity due to parenting or health issues.

What if either of us enters into a new relationship?

If either party enters a new de facto relationship or remarries, it does not invalidate the property settlement. However, it can impact ongoing obligations, such as spousal maintenance or parenting arrangements.

For example, a party receiving spousal maintenance may lose their entitlement if they enter a new relationship with shared financial support.

Additionally, if a property settlement has not yet been finalised, the new partner’s financial contributions may be relevant to the proposed property settlement.

Moreover, parenting agreements may need to be updated if a new partner affects the children’s routine or care.

That’s why it’s important to finalise any settlement as quickly as possible, noting the circumstances after separation.

Get personalised legal support with your separation

Knowing how the family law separation process works and seeking advice will empower you to move forward with confidence and fairness.

At BDN Lawyers, our experienced family lawyers in Canberra and Queanbeyan provide tailored support to help you navigate the division of assets, parenting agreements and financial aspects of your de facto separation or divorce.

We have deep experience handling complex parenting and property matters and specialise in alternative dispute resolution options in Family Law. Not all separations require going to Court. Whether you’re preparing for separation or already in the middle of negotiations, our Family Law team is here to help.

Get in touch to discuss your matter today.