What Am I Entitled To in a Separation?

You have separated, the relationship is over, and the question circling at 2am is a simple one: what do I actually get to keep? The house. Your super. The savings you built. Whether you have to hand over half of everything because that is just how it works.

Let me give you the straight answer. There is no automatic 50-50 split in Australia. Nobody halves the assets on principle. What you are entitled to is whatever is just and equitable after a set process, and as of 10 June 2025 that process is written into the Family Law Act 1975. It now openly counts things the old approach used to miss, like whether your ex controlled the money. So let me walk you through what you actually get under the current rules.

The rules changed on 10 June 2025

If you have been reading older articles, some of what you have seen is out of date. The Family Law Amendment Act 2024 commenced on 10 June 2025 and changed how property settlements are decided. So if you are separating now, your situation is assessed under the new rules, not the template that applied a couple of years ago.

The good news: most of the changes make the process clearer and fairer, not harder. They write down what courts were already doing, and they force a few things into the open that used to get argued about in the dark.

The four steps behind your settlement

Here is how anyone deciding your split, whether a judge or the property settlement lawyers negotiating on your behalf, has to think. The old approach used to be called the Stanford pathway. It is now spelled out in the Act itself, at s 79(3) for married couples and the mirror provision s 90SM(3) for de facto couples. Four steps:

1. Identify the pool. Everything you both own and everything you both owe. The house, the savings, the cars, superannuation, a business, any debts.
2. Assess contributions. What each of you put in, financial and non-financial. The deposit and the mortgage payments, and also the years of raising children and running the home.
3. Assess current and future circumstances. Where each of you lands going forward: earning capacity, who is caring for the children, health, and now the economic effect of family violence.
4. Check it is just and equitable. Stand back and ask whether the result is actually fair.

Only then does it land on a percentage. And that percentage moves. Sometimes 50-50, sometimes 60-40, sometimes 70-30, depending on the facts. There is no magic number. The Attorney-General’s Department fact sheet sets out the same four steps in plain English if you want the official version.

The property adjustment power sits in section 79 of the Family Law Act 1975 for married couples and section 90SM for de facto couples.

What counts as the property pool

This is where a lot of people get caught out. They assume the pool is just the joint bank account and the family home, and that anything held in one name, or tucked inside a business or a trust, is off limits. It usually is not.

We had one case where a husband thought his business was untouchable because he ran it himself. But when we showed how the business funded the family lifestyle, it became part of the property pool. We’ve also had clients shocked to learn that debts, like a mortgage or even a credit card in one partner’s name, can be treated as joint debts.

The same goes for structures people assume are watertight.

Her husband had a discretionary family trust he assumed was safe from settlement. But because he controlled it and used it for family expenses, we argued it was effectively part of the asset pool, and that made a six-figure difference in the final settlement.

So the lesson is simple. The pool is what is really there, not what the labels say. If your ex is telling you the business or the trust ‘doesn’t count’, do not take that at face value.

Your contributions: what you put in counts

Step two is contributions, and this is where the split often moves off the middle. Contributions are not just money. Paying the mortgage counts, and so does staying home to raise the kids or renovating the place on weekends. A big head-start contribution counts too, and it can shift the numbers meaningfully.

We represented a husband who had invested a $500,000 inheritance into the family home early in the marriage. His wife argued it was for the family so it shouldn’t count in his favor, but we successfully argued that the contribution should be weighted, which shifted the division by an extra 10% in his favor.

That is the whole point of keeping records. If you put in a deposit, an inheritance, or years of unpaid work at home, that is not just history. It is evidence that can move your entitlement.

Does it matter if my ex controlled the money or was abusive?

Yes, and this is one of the biggest changes. From 10 June 2025 the court must consider the economic effect of family violence when it works through step three, your current and future circumstances (s 79(5)(a)). The definition now spells out economic and financial abuse, for example controlling your access to money or sabotaging your ability to earn (s 4AB).

Let me be blunt about what that means. If your ex kept you away from the bank accounts, stopped you working, or left you to rebuild from nothing, that is no longer invisible. It can move the percentage in your favour. You do not have to have a police record or a court order for it to matter, though evidence always helps.

The definition of family violence, including economic abuse, is in section 4AB of the Family Law Act 1975.

What about the money one of you burned through?

The pool is what is left after debts, so debts come off the top before anything is divided. But there is a catch that cuts the other way. If one of you deliberately or recklessly burned through money, gambled it, or spent it out of spite, the court takes that into account when it decides what a fair split looks like. Since 10 June 2025 that is written into the Act rather than left to case law: ‘the effect of any material wastage, caused intentionally or recklessly by a party’ is one of the current-and-future-circumstances considerations in s 79(5)(d) of the Family Law Act 1975, and s 90SM(5)(d) for de facto couples. If assets were actually shifted out of reach rather than spent, that is a different tool again, and the court can set the transaction aside under s 106B.

So running down the savings the moment things go sour is not a clever move. It tends to come back on the person who did it.

Does your ex’s super get split too?

People forget superannuation is property, and it can be a huge part of the pool. If one of you has far more super than the other, often because one of you paused work to raise children, the court can order a super split to even it out.

People don’t realise that super is included. We’ve had cases where one party has had three times the super of the other party, and a super split has been ordered in order to balance it out, so both parties are able to enjoy their retirement.

So if you are thinking ‘the house is all there is’, check again. Your ex’s super counts, and so does yours.

What happens to the pets

This is one people actually care about, and the new rules finally deal with it. The court can no longer make a ‘shared custody’ order for a pet. There is no such thing. Under the companion-animal framework it can only do one of three things: give sole ownership to one of you, transfer the animal to someone else who agrees to take it, or order that it be sold. In deciding, the court looks at who bought the animal, who cared for it, and any history of family violence or cruelty (s 79(6)-(7)).

Not the answer most people want, but at least it is now a clear one.

Putting your cards on the table

Both of you have a duty to make full and frank disclosure of your finances. That duty is now written into the Act itself, not just the court rules: s 71B of the Family Law Act 1975 requires full and frank disclosure, in a timely manner, and it runs from the start of the proceeding until it is finished.

Here is why it matters to you. If your ex hides assets, it backfires: the court can draw adverse inferences and order them to pay your legal costs. And if you are tempted to hide something yourself, do not. The same consequences land on you. Honest disclosure is also what makes family mediation work, so you can settle without a fight.

One more thing to keep separate in your head: child support is assessed under its own system, separately from the property split, so do not assume a bigger property share cancels out child support, or the other way around. Spousal maintenance is also assessed separately, on need versus capacity to pay, so the property percentage is not the whole picture either.

Most of this never sees a courtroom

If the word ‘court’ is what is scaring you, take a breath. The aim is to reach an agreement and formalise it through consent orders, which are final and enforceable, without a trial.

Try and negotiate a settlement so that you can finalise it without going to court. We find that over 90% of our clients settle without going to a trial, which is great news because you save on legal fees.

The same four steps apply to married couples and de facto relationships alike, so de facto couples get assessed under s 90SM in exactly the same way.

If any of this is keeping you up at night, that is normal, and you do not have to work it out alone. Book in a chat with me and my team. No pressure, no judgment, just an honest read on where you actually stand. You can reach our property settlement lawyers for a free discovery call on 1300 614 732, or send us a message about your separation and we will walk you through it.