Who Gets What In Financial Divorce & Separation
When couples separate, one of the first questions is, “Who gets what?”
Australian family law has a structured way of answering that question. It is not about who is “to blame” for the breakup. It’s about working out a fair and “just and equitable” division of the property you have at the time of the settlement.
In simple terms, the court (or your lawyers in negotiations) usually look at the four steps:
- What is in the property pool?
This includes assets in your name, your ex’s name and sometimes in companies or trusts you control – things like the home, investment properties, savings, vehicles, shares and superannuation.
- What were each party’s contributions?
Contributions are much broader than “who earned the most”. They include:- Financial contributions (income, inheritances, savings, lump sums)
- Non‑financial contributions (renovating a property, unpaid work in a business)
- Contributions to the welfare of the family (raising children, running the household).
- What are your future needs?
The law then looks at each person’s age, health, income and earning capacity, who is caring for the children, and other responsibilities. If one person is likely to struggle more financially in future, that can justify an adjustment in their favour.
- Is the overall result fair?
Finally, the court stands back and asks: “Is this division just and equitable in all the circumstances?” If not, further adjustments can be made.
How to Investigate Your Desired Outcome
You don’t need to go to court to use this approach. Good family lawyers apply the same logic to negotiate and reach agreement, either directly between lawyers, at mediation or through a formal Binding Financial Agreement (BFA) or Consent Orders filed with the Court.
The law also treats marriages and de‑facto relationships in a very similar way for property division purposes. Time limits apply, so it’s important to get early advice, especially if there are businesses, trusts or overseas assets involved.
Trends and Outcomes in Property Division
Asset pools
- Court‑filed property cases involve somewhat larger pools.
- The median net property pool in litigated cases is around $550,000.
- Approximately half of all court property matters fall below this “small pool” threshold, thus use the small‑claim pathways.
Order splits
- Where there are children, the primary‑carer or primary‑homemaker party (often the mother) typically receives a modest majority share of the net asset pool.
- Court decisions and settlement patterns explicitly link higher shares to homemaker and child‑care contributions and to future needs (particularly where one party has the major responsibility for the care of children).
- Across studies, the primary‑carer share is commonly in the mid‑50s per cent (around 55–60%), with the other party receiving the remaining 40-45%).
- High-Net-Worth Cases: Adjustments for future needs averaged 8–12% in favour of lower-earning spouse.
Case times
- Outside the court system, about half of couples who have property to divide resolve their property arrangements within one year of separation.
- Around 30 per cent take two years or more to reach a final outcome, with longer timeframes more common where asset pools are larger or issues are more complex.
- Median time to resolution in those small‑pool streams is typically around 4–6 months,
Your next step: free no obligation strategy consult
At Goldman Lawyers, our role is to help you understand your realistic range of outcomes, then design a strategy that protects your financial future while keeping legal costs under control.
