What Am I Entitled To In A Separation? – Australia
Who gets what? How is property determined? Understand your entitlements in a separation in Australia.
Step 1: Determine the available assets
The asset pool includes real estate, bank accounts and cash, superannuation, vehicles, investments and shares, businesses, high-value personal property, debts and liabilities, and inheritances, trusts or future entitlements. Assets are valued at current market value; disputes require professional valuations. Superannuation is treated as property under the Family Law Act and can be split between parties, though it remains inaccessible until retirement. Assets acquired before the relationship may still be included if they benefited the couple during the relationship. Both parties must make full and frank disclosure of all assets, liabilities and financial resources — non-disclosure can lead to a settlement being reversed and penalties applied.
Step 2: Is an adjustment ‘just and equitable’?
The court first asks whether altering property ownership is appropriate at all. As the High Court held in Stanford v Stanford [2012] HCA 52, the mere fact of separation or divorce does not in itself justify adjusting property rights. Adjustment is typically necessary where there is joint property, significant shared contributions, or where legal ownership doesn't reflect actual contributions.
Step 3: Assess contributions
Financial contributions include salary and wages, savings and investments, inheritances and gifts, and pre-relationship financial inputs. Non-financial contributions include home improvements, managing family investments, and supporting a partner's career. The Family Law Act explicitly recognises contributions as a homemaker or parent as equally important to financial contributions. Long-term relationships tend toward a holistic assessment; shorter relationships may preserve more of what each party brought in.
Step 4: Assess future needs
Section 75(2) factors include age and health, income and earning capacity, care of children, financial resources and superannuation, and standard of living. The court strives to avoid undue hardship, though it doesn't guarantee lifestyle preservation.
Step 5: Reassess for overall fairness
The final review confirms the proposed division is fair and equitable based on relationship length, the nature of contributions, future needs, and the overall financial situation. If a settlement does not achieve fairness, the court may adjust the division of assets.