Worried you’ll lose the house, your super or your share of the family money when your relationship ends? That fear is normal. Separation in Australia brings urgent, stressful questions: What am I entitled to? How long do I have? Can I keep the kids?
In this post you’ll find exactly what you need about separation entitlements in Australia. You’ll learn how the court decides a fair split, the five-step test, and the FAQs people actually search for about their separation rights.
Keep reading, the next 10 minutes could save you months of worry and thousands in cost.
Understanding Separation Entitlements in Australia
When a relationship ends, the big question is usually the same: what are my rights after separation? Under Family Law Act 1975, courts have the power to divide property and make support orders so the result is “just and equitable” for both people. That sounds legal and vague, but in practice the courts use a clear, practical approach to reach a fair outcome.
There is no fixed formula (not automatically 50/50). The court looks at everything you and your partner own or owe, how each of you contributed, and what each of you will need going forward.
In Western Australia those principles apply in the Family Court and in local practice. So, this isn’t just theory; it’s how real cases in Perth are decided.
See how separation and divorce differ under WA law
What Am I Entitled to in a Separation in Australia? Your Core Separation Rights
Knowing your rights early helps you make smart, confident decisions. Here are the main separation entitlements most people ask about in Australia:
You Have the Right to Leave the Relationship
You don’t need to file a court document to separate. Separation happens when one partner decides to end the relationship and communicates that clearly — even if both people still live under the same roof. Keep evidence of separation (texts, emails, or living arrangements) in case you need to prove it later.
Wondering ‘how do I prove that we’re separated if we still live together?’
Sometimes couples separate but continue living under the same roof for financial, parenting, or practical reasons. That’s completely acceptable. But if the timing of your separation is later questioned (for property division or time limits), you’ll need to show clear evidence that the relationship had truly ended.
The court looks at the reality of your relationship, not just where you live. Useful evidence includes:
- Sleeping in separate bedrooms
- Managing separate finances (bank accounts, bills)
- No longer sharing household duties (like cooking or cleaning)
- Not attending social events together
- Informing family and friends that you’ve separated (through messages or emails)
Collecting this simple evidence early helps avoid disputes later about when separation occurred and ensures your property and timing claims are clear.
You Can’t Be Forced Out of the Family Home Without an Order
Unless a court grants exclusive occupation or there’s a family violence order, one partner can’t simply force the other to leave. If you can’t agree who stays, the Family Court of WA can make an occupation order.
Leaving the Home Doesn’t Remove Your Ownership Rights
If you move out, you still legally retain your share of the property and household contents. Everything remains part of the property pool that’s divided later.
You’re Entitled to a Fair Share; Not Automatically Half
The court aims for a just and equitable division, not a fixed percentage. It considers financial and non-financial contributions (including parenting and homemaking) and each person’s future needs. That’s why personalised legal advice is essential — outcomes differ greatly between couples.
Superannuation Is Usually Included
Super is treated as property and can be divided by agreement or superannuation splitting orders. However, this doesn’t mean immediate cash access — standard super rules still apply. If super is a large asset, expect it to be valued and included in the final property settlement.
Parental Rights Stay Equal; Unless the Court Orders Otherwise
Separation doesn’t automatically change parenting rights. Both parents usually retain parental responsibility, unless it’s unsafe or not in the child’s best interests.
Your Immigration Status Isn’t Automatically Affected
If you’re an Australian citizen or permanent resident, separation doesn’t impact your legal status. If your visa is partner-based, the Department of Home Affairs will review your situation, so seek immigration advice early. Threats of deportation are taken seriously and may count as family violence.
If you’re experiencing family or domestic violence, prioritise your safety. Contact us for quick legal support.
How Courts Decide Property After Separation: The Five-Step Property Division Process
In practice the court applies a straightforward five-step approach to reach a fair result for both people. Below, you’ll explore each step with practical tips for people in Perth, WA.
Step #1: Should the Court Adjust Interests? Is it Just and Equitable?
Before anything else, the court asks: is it fair to alter the current property interests at all? If the relationship was very short and finances were largely separate, the court might decide no adjustment is necessary. In most cases involving shared lives, homes, or children the court will proceed to the full test. This first gate keeps trivial claims out of costly litigation.
Tip: Even if you think your finances are separate, keep records. Judges consider the real-life picture, not just whose name is on the title.
Step #2: Identify and Value Everything (Build the Property Pool)
Next the court identifies and values every asset and debt that belongs to either party, including things that might be easy to forget:
- family home and other real estate
- bank and investment accounts
- vehicles, boats, high-value personal items (jewellery, art)
- business interests, trusts or shareholdings
- insurance entitlements and future inheritances (sometimes)
- superannuation balances (treated as property)
- mortgages, loans and other debts.
Superannuation is a common large asset and is treated differently from cash. It can be split but usually remains in super until retirement.
Step #3: Measure Each Person’s Contributions
Once the pool is clear, the court compares what each person put in. Contributions are broad:
- Financial contributions: wages/savings, inheritances used during the relationship, gifts, mortgage repayments.
- Non-financial contributions: homemaking, child care, renovations, managing the household, and supporting a partner’s career.
- Indirect contributions: where one partner’s income was used to pay household costs so the other could build a business or study.
Length and timing matter. A large recent contribution may weigh differently to decades of caring for children. Family violence and its impact on a party can also be taken into account.
Step #4: Consider Future Needs
The court then looks ahead: who can earn what, who cares for children, health, age, and whether a party needs more resources to become self-sufficient. Typical factors include:
- age and health of each person
- who has primary care of children and for how long
- earning capacity, employment barriers or retraining needs
- any financial loss caused by caring responsibilities or family violence.
This step shifts outcomes e.g., a long-term carer may receive a larger share to redress future disadvantage.
Step #5: The Final Outcome: A Fair, Workable Result
Finally, the court asks whether the proposed orders produce a just and equitable result in practice. Orders should be workable and, where possible, allow a clean financial break so parties can move on. That may mean one party keeps the house while the other receives a larger share of other assets or super, or it may require sale of property and division of proceeds.
Remember: judges have wide discretion. Outcomes are highly fact-specific and there is no single formula. If the court views disclosure or negotiation as unfair (especially after the 10 June 2025 reforms that elevated disclosure duties into the Act), it can penalise non-compliance when making orders.
Got questions about what you’ll actually get after separation. Find below:
FAQs About Separation Entitlements in Australia
These are the real questions people in Perth and across Australia ask every day when trying to understand their separation entitlements. Here’s a guide that breaks it all down for you.
Property Division & Financial Entitlements
- How is property divided after separation in Australia?
The court divides the combined assets and debts of both parties (the property pool) in a way that is just and equitable, using a practical multi-step approach: identify and value assets, assess contributions, consider future needs, and then decide a fair outcome.
This applies across Australia and in WA. The result depends on the specific facts, not a fixed formula.
- Do both partners have equal rights to property?
There is no automatic 50/50 split. Both partners usually receive a portion of the property pool, but the court adjusts percentages according to contributions (financial and non-financial), length of the relationship, and future needs. So, equality is the starting idea of fairness, not a rule.
- What counts as the property pool in a separation?
The property pool includes real estate, bank and investment accounts, cars, business interests, superannuation, valuable personal items (jewellery, art), and any inheritances or gifts that form part of the relationship’s finances. Debts (mortgages, loans, credit cards) are counted too and are deducted to calculate the net pool.
- What happens to the family home after separation?
Your interest in the home remains part of the property pool even if you move out. Options include one partner buying out the other, selling and splitting proceeds, or keeping co-ownership until a later sale. A court can make occupation orders in urgent cases, but it won’t automatically deprive you of your share.
- Is superannuation split in a separation or divorce?
Yes, superannuation is treated as property and can be split by agreement or by superannuation splitting orders made by the court. The law sets out how to value and split super balances. Splitting doesn’t automatically mean immediate cash access because super rules still apply.
- Am I entitled to my partner’s inheritance or gifts?
It depends on timing and intention. Inheritances and gifts received during the relationship are often included in the property pool. Inheritances received after separation are more likely excluded. The court will consider whether the donor intended the gift for both partners when deciding.
- How are debts and loans divided after separation?
Debts are part of the net property pool and will be allocated between parties, either one person takes a debt, or liabilities are offset against assets in the settlement. The court may order one party to pay a particular debt or divide responsibility according to the overall split.
Spousal Maintenance & Financial Support
- Am I entitled to spousal maintenance after separation?
You may be if you cannot meet your reasonable living expenses from your own income/assets and your ex has the capacity to pay. Maintenance is separate from property division and is based on need (applicant’s shortfall) and capacity to pay (payer’s resources).
- How is spousal maintenance calculated in Australia?
There’s no fixed formula. The court compares the recipient’s reasonable needs (housing, living costs, childcare) to the payer’s ability to meet those needs after meeting their own obligations. Judges consider age, health, income, earning capacity and caregiving duties when setting amount and duration.
- When does spousal maintenance end?
Maintenance can end when the recipient’s needs cease. For example they become self-sufficient, remarry, or enter a new de facto relationship. Either party can apply to vary or end an order if circumstances change materially.
De Facto Relationships & Legal Rights
- Do de facto couples have the same entitlements as married couples in WA?
Broadly yes. De facto partners have similar rights to property division, super splitting and maintenance in WA, but there are additional eligibility requirements (e.g., usually two years’ cohabitation or a child of the relationship, or substantial contributions) and a different deadline to apply. The substantive legal approach is the same.
Time Limits & Legal Process
- How long do I have to settle property after separation?
Time limits depend on relationship type. Married couples generally have 12 months from the date the divorce is final to start court property proceedings. De facto couples generally have 2 years from separation. You can still negotiate privately after these dates, but court applications may be barred without permission.
- What happens if I miss the 12-month or 2-year time limit?
If you miss the deadline, you must ask the court for leave (permission) to proceed and show a good reason for delay. The court has discretion and may refuse if delay causes unfairness or prejudice, so missing deadlines makes litigation harder.
- How long does it take to finalise a property settlement in WA?
Times vary. An agreed settlement can wrap up in a few weeks or months. Contested matters that go through court can take a year or several years depending on complexity, disclosure delays, valuations, and whether appeals occur. Complex asset cases (businesses, trusts, multiple properties) take longer.
Legal Agreements & Court Orders
- What is a Binding Financial Agreement (BFA)?
A BFA is a private, legally binding contract between partners that sets out how assets, superannuation and maintenance will be handled if the relationship ends. It can be made before, during or after a relationship, but strict formalities apply (including independent legal advice) for it to be enforceable. BFAs give certainty but require careful drafting.
- What are Consent Orders and how do I get them in Perth?
Consent Orders are court-approved documents that make your agreed settlement legally enforceable. After you and your ex agree, you file an application and draft orders with the Family Court. The court reviews fairness and may make the orders without a hearing if satisfied. Consent Orders combine certainty with court enforcement.
- Do I need to go to court to divide property?
No, many couples settle privately through negotiation, mediation or family lawyers and then lodge Consent Orders or a BFA. Court is the final option if parties cannot agree. Courts actively encourage dispute resolution and will often refer parties to mediation first.
Living Arrangements & Safety
- Can I stay in the family home after separation?
Yes, unless the court orders otherwise. You can remain living there until settlement, and moving out does not forfeit your property rights. If safety or stability is an issue, you can apply for temporary occupation (sole occupancy) orders or other protective measures.
- What if there is family violence, what protection can I get?
If you or your children are at risk, immediate protections include applying for a Family Violence Restraining Order (FVRO) or similar urgent orders through Magistrates’ or Family Court channels. Courts can also make exclusive occupation orders and criminal or civil penalties may follow for breaches.
Safety is prioritised over property disputes. Reach us out to get urgent legal and support service help if violence is present.
Practical & Common Questions
- What documents should I prepare for property settlement?
Collect the following documents for property settlement:
- titles and sale contracts for property
- recent bank and investment statements
- superannuation statements
- tax returns and payslips
- loan and mortgage documents
- business records
- valuation reports
- proof of inheritances or gifts
You’ll also need a sworn Financial Statement (Form 13) if proceeding in court. Keeping these organised speeds negotiations and satisfies disclosure rules.
- How much does a separation or property settlement cost in WA?
Costs vary widely. An amicable, lawyer-assisted settlement with consent orders can cost a few thousand dollars. Contested court matters commonly run into tens of thousands depending on complexity. Court filing fees apply and legal fees differ by firm. Discuss fixed-fee options or limited-scope advice with your lawyer to manage costs.
Worried you’ll lose your fair share in a separation? Need Support Understanding Your Entitlements?
Contact Hoe Lawyers: Get Expert Legal Support & Advice on Your Separation Entitlements in Australia
At Hoe Lawyers, our Perth-based family law team regularly appears before the Family Court of Western Australia. We understand how local judges interpret fairness under the Family Law Act, and that insight can make all the difference in your outcome.
Don’t guess what you’re entitled to. Get clear legal advice from expert family lawyers in Perth.
We’ll review your financial position (property, super, debts and maintenance), explain critical WA time limits, and outline safe next steps; all in one consultation.
Protect Your Separation Entitlements in Perth