What Am I Entitled to in a Separation (Updated 2024)

Going through a separation can be a complicated and stressful process.

Knowing what you are entitled to in a separation can help to make things smoother, both in the short-term and the long-term to help ensure your best interests are taken care of.

It is important to understand the rights and entitlements of each individual during the separation process, regardless of your particular circumstances.

Separation is the dissolution of an intimate partnership, including marriage and de facto relationships.

It’s important that following this split you and your partner make some immediate decisions about any practical issues concerning children and/or any assets such as property and debts.

Some things to consider are:

• Are there any outstanding bills or debts?
• Who will stay living in the house?
• Is there a mortgage? Who will pay the rent?
• What will happen to any joint bank accounts or credit union accounts?
• What will happen to any shared furniture, cars, or any other property?

It may be hard to agree on any of these things at once but if it is possible to come to a temporary agreement before seeking legal advice it would help greatly for positive long-term outcomes.

Key Points

• Seek legal advice
• Know your entitlements
• Consider the long-term outcomes

Seeking Legal Advice when wanting to know what am I entitled to in a separation

Separation is a legal process and it is strongly recommended that you seek the assistance of an experienced family law solicitor.

There is no ‘one size fits all’ approach when wanting to know what am I entitled to in a separation.

Each relationship is different and therefore each outcome will be different in a separation.

It is important to have legal advice tailored to your situation to fully understand your rights and entitlements, or the rights and entitlements of your former partner.

Justice Family Lawyers can provide you with comprehensive advice to help ensure that you are getting the best outcome possible.

Following a separation, you may not need to appear in court to make arrangements for dividing property and finances, however, you will need to apply to the Court for a Divorce order if you seek to end your marriage.

An experienced family law solicitor can assist you through dispute resolution protocols if no agreement can be made autonomously.

Dispute resolution includes a range of services that are designed to assist in the resolution of issues that may arise from separation or divorce, and are intended to improve the relationship between parties during these difficult conversations.

Common practices in dispute resolution include compromise and discussion, either with the help of a lawyer or independently.

What Am I Entitled To In A Separation?

In Australia, the family law system recognises that each party involved in a separation is entitled to a ‘just and equitable share’ of the matrimonial assets.

When determining what property and/or assets each person is entitled to there are a range of factors that are to be considered.

These can include each person’s financial and non-financial contributions to the partnership and will be taken into consideration during the separation.

These contributions can include:

• Household duties
• Childbirth
• The care of any children
• Vocational or technical skills used during the partnership

Following the dissolution of a partnership, both you and your ex-partner are entitled to live in the shared home regardless of the name on a rental agreement or the title of the property.

It is unjust if you are forced to leave if the property is not in your name, the only exemption would be if the court has placed an order for you to do so.

These orders are called ‘Sole Occupancy Orders’ and are only put in place in severe circumstances.

If you have to move out it will not affect any entitlement of your share of the property and any rights and entitlements that you have accrued during the relationship will remain intact.

Under sole occupancy, means that one party can remain living in the house until the property has been divided.

You and your former partner are also entitled to enter into a financial agreement with the assistance of legal advice from an Australian property settlement lawyer, you cannot enter into this agreement without legal advice.

Under Part VIIIA (marriages) or Division 4 of Part VIIIAB (de facto relationships) of the Family Law Act 1975 (Cth) a financial agreement is a contract between two or more parties and will include explicit agreements surrounding the division of property, finances, liabilities, superannuation, and spousal maintenance.

Also read: Conciliation Conference: A Guide to Resolving Family Law Disputes

Is There a Difference in Entitlement When Couples are Separated but Not Divorced Australia?

Yes, there are some key differences in entitlement when couples are separated but not divorced in Australia, compared to couples who have formally ended their marriage:

Property Settlement

• Divorced: You have 12 months from the date your divorce is finalized to apply for a property settlement through the courts. After that deadline, you’ll generally need the court’s special permission to proceed.
• Separated: There is no formal time limit for separated couples. However, it’s highly advisable to finalize a property settlement promptly. The more time passes, the harder it is to prove asset ownership and contributions, increasing the risk of disputes.

De Facto Relationships

• Divorced: The same 12-month time limit applies to de facto couples who wish to apply for a property settlement after officially ending their relationship.
• Separated: You have a 2-year timeframe from the date of separation to apply for a property settlement if you were in a de facto relationship.

Spousal Maintenance

• Divorced: In general, once a divorce is finalized, spousal maintenance obligations may cease unless a specific arrangement was made in your divorce settlement.
• Separated: A spouse may still have an obligation to provide financial support to their separated partner if there is a demonstrated need.

Superannuation Splitting

• Divorced: You can apply to split superannuation with your former spouse after your divorce is finalized.
• Separated: You can generally only split superannuation once a formal divorce has occurred.

Considering the Long-Term Outcomes

It is not only important to consider what you are entitled to as a result of your separation, it is also important to consider the long-term outcomes of the separation.

It is important to consider the legal and financial implications of the separation on your future, as well as considering emotional wellbeing, children or any other relevant factors.

Having the right legal guidance can help to ensure a fair process and a just outcome that considers everyone involved.

At Justice Family Lawyers, we are experienced in helping individuals through the separation process and work closely with our clients to ensure the best possible outcome for them. Our team can provide you with expert advice to help ensure that you are fully aware of all your entitlements, as well as offer assistance through the entire process. What you are entitled to in separation can be complex and making sure you have the right legal advice is key.

No two separations are the same. It is important to understand what am I entitled to in a separation and consult with a professional to determine the best legal options so that your interests are best represented.

Justice Family Lawyers are experienced and dedicated to helping individuals and families during the stressful separation process.

Get in touch today to learn more and find out how our team can help you.