Separation and divorce can be an emotionally charged and challenging journey. It affects every part of your life, from your legal rights to your financial wellbeing. It’s important to remember that no two relationships end the same way, but many women share similar questions and worries: How will our assets be divided? What support will be available for me and my children? Will I be financially secure moving forward?

This article aims to help you feel more informed and supported as you navigate this transition. It will provide an overview of the key considerations for both legal and financial preparation and offer guidance to help you choose the right legal team for your unique situation.

Important Note: This article is for informational purposes only and does not constitute formal legal advice. Always consult a qualified lawyer, preferably an accredited specialist in family law, regarding your specific circumstances.

Getting prepared: The paperwork & mindset

Gather financial documents early

One of the first steps our clients are asked to take is to prepare a list of all assets of the relationship and to compile all relevant financial records. Relevant financial records include recent pay slips, bank and credit card statements, mortgage statements, the last three years of tax returns and notices of assessments, investment account summaries, the financial statements and tax returns for any trust or business entity, and superannuation details. Having these documents on hand helps us create an accurate and current balance sheet.

Set emotional boundaries

Divorce can spark a roller coaster of emotions such as anger, sadness, relief, and fear. Emotional tumult can impact your financial decision-making if left unchecked. Seeking professional support, such as a counsellor or therapist, can help you stay grounded during the post-separation period. Maintaining emotional clarity will help ensure rational, future-oriented choices. While friends may share well-meaning stories based on their own experiences, it's important to prioritise expert guidance tailored to your unique situation.

Understanding property division

Defining the “pool”

The first step when seeking to achieve a property settlement is to establish what is known as the “asset pool.” The asset pool comprises everything from jointly owned or individually owned real estate, business assets, companies, trusts, liabilities, and superannuation, whether acquired before, during, or after the marriage or de facto relationship. Accurately identifying and valuing these assets is the crucial first step towards a property settlement.

Key factors in division

A relationship breakdown often amplifies existing power imbalances, particularly when one partner has stepped away from paid work to care for children. The financially dominant partner may say things like, “You don’t need a lawyer”, or “We can sort this out ourselves”, when separation and financial matters arise. These comments are fraught with danger signs as they are intended to dissuade the less dominant person from seeking expert advice as to their rights and entitlements under the Family Law Act and most often emanate from a financially controlling partner. They presuppose that if lawyers get involved, it means the fight is on or that the matter will end up in court.

The paramount focus of an expert family law lawyer is the best interests of their client, and that focus should be to assist their client to resolve all aspects of the dispute by resolution rather than litigation, with court proceedings being a last resort.

Engaging a lawyer doesn’t mean more costs or that your matter will end up in court. A good family lawyer will advise you on the likely range of outcomes if your case were to be determined by a court, while also working to keep you out of court wherever possible. Their advice is based on the specific facts of your relationship and considers those within the parameters of the Family Law Act. The lawyer will advise on what a court might do if it were tasked with the decision as to how to divide the asset pool. Only a range of outcomes can be provided as the court has an extremely wide discretion. Once the parameters or the range of outcomes is considered, the next step is to discuss with the client how to achieve the desired end goal.

When advising on how to divide the asset pool and address the financial consequences of a relationship breakdown, a family lawyer may guide you through the following process:

• The first step is to estimate the value of the pool to be divided. Often only a rough idea can be ascertained at the first consultation. You do not need to know about all of the assets, their value, and how they are held because each person is required to provide full and frank disclosure of their respective financial circumstances. Where there is disagreement about the value of an asset, a jointly appointed expert will be nominated to value the asset in dispute. In some cases where the asset pool is held in complex structures and trusts, the first step can be the most difficult in the process.

• The second step is to assess the financial and non-financial contributions made by the parties during the relationship including ascertaining the assets held by each party to the relationship at the commencement of cohabitation. This is called the contributions-based assessment.

• The third step is to consider whether there should be an adjustment to either party to the contributions-based assessment taking into account future factors such as, each party’s future needs, their respective earning capacity, health issues which may affect earning capacity, parental responsibilities, the cost of caring for children, the costs of re-skilling to re-enter the workforce and the like.

• At the fourth step, the court must ensure that the outcome is just and equitable in all of the circumstances of the particular matter. This doesn’t always mean a 50/50 division of the asset pool. There is no starting point of 50/50, and this is a commonly held misconception.

The overriding principle is to achieve financial finality as between the parties to the relationship. Understanding the rationale behind each party’s entitlement early in the process helps frame realistic expectations.

A lawyer can be as involved as much as you want, or they can stay in the background and guide the client during the negotiation process. We frequently assist clients to resolve their disputes and stay right in the background until an agreement is reached and we then draw up the settlement documents. A family lawyer can provide direction on how best to handle the negotiations, and this will depend on the circumstances of the breakdown of the relationship, the amicability of the parties, and whether a direct approach or an approach via a family lawyer is the optimal way to achieve the end goal. In some cases, a combination of both approaches works best.

Spousal maintenance & child support

Spousal maintenance

In some cases, one spouse may be required to financially support the other for a set period such as where the receiving spouse has a lower income and is unable to adequately support her or himself. Factors influencing the amount and duration of maintenance include:

• Age and health of both parties;

• Current income of the payer;

• The current income of the payee;

• Standard of living during the relationship; and

• The reasonable needs/expenses of the payee and the ability of the payer to contribute to those needs, taking into account the payer’s income and their own reasonable needs.

Child support

Child support is not to be confused with spouse maintenance. It is quite separate from spouse maintenance and property settlement.

The amount of child support is typically determined using a statutory formula that considers each parent’s income and the number of nights the children spend in each parent’s care. In some circumstances, the costs associated with education or special needs will also be factored in. While straightforward in theory, issues often arise in practice, such as who pays for extracurricular activities, private tuition, or childcare fees. Clarity on these points early on may reduce later disputes. Child support should be considered in conjunction with the overall financial settlement of the parties.

Superannuation & long-term financial security

Splitting superannuation

Superannuation is a critical element of most Australians’ retirement plans. Superannuation is included in the asset pool, and is capable of being split as part of a property settlement. As part of the property settlement, one party may “split” a portion of their superannuation to the other. The specifics of splitting orders vary greatly depending on whether the superannuation is held in an industry fund or via a self-managed fund and if the latter, what assets make up each member’s entitlement.

Planning Ahead

Many women face a “retirement gap” due to factors like time spent out of the workforce or working in part-time roles. Planning superannuation splitting should be done with the advice of a family law specialist and, in some cases, in conjunction with the advice of an accountant, financial adviser, or financial planner.

Engaging the right professionals

Beyond the lawyer

While a family lawyer handles your legal strategy, other professionals can play a key role in supporting your financial wellbeing after separation. In matters involving complex asset structures, it’s often advisable to engage financial experts alongside your lawyer, and ideally before entering into settlement negotiations. Other advisers include:

• Financial Planners: They offer guidance on budgeting post-separation, rebalancing investment portfolios whether held individually or via an SMSF, and planning for retirement goals.

• Accountants: Advise on the tax implications of a proposed property division, spousal maintenance order, or agreement.

• Mediators: Facilitate alternative dispute resolution, potentially saving costs and reducing hostility if both parties are open to cooperative negotiation. There are many excellent mediators used in the Family Law sphere comprised of former judges and judicial officers, barristers, and lawyers.

• Arbitration: Despite best intentions, court delays are often lengthy, sometimes taking 18 to 36 months. Arbitration provides an alternative to a Judicial approach and enables a more timely determination of the dispute. 

Collaborative vs. litigious approaches

Not every divorce journey involves an acrimonious courtroom battle. In fact, most don’t. . Except in very limited circumstances, such as where there is urgency, every party to a relationship breakdown must attend mediation before the commencement of court proceedings and it is also often ordered as part of the court process.  Sometimes a matter may require several mediations in order to resolve the dispute. Most matters are settled without the intervention of the court, and where litigation is commenced, most of those matters are resolved before a final trial. Only a small percentage of court-commenced cases continue all the way to a final judicial determination.

The collaborative law process can be beneficial if both spouses are willing to negotiate amicably and use this model. This approach often leads to quicker, less stressful outcomes—though it hinges on mutual respect and honesty, and both parties’ lawyers must be qualified to work in the model.

Rebuilding after divorce

Updating wills & beneficiaries

Once a settlement is reached, it is essential to review legal documents such as wills, powers of attorney, enduring guardianship appointments, your binding death nomination for your superannuation fund, and the beneficiaries of your insurance policies. This ensures new circumstances are reflected, protecting any new partner or children and preventing your ex-partner from benefiting in the event of death or incapacity.

Reassessing financial goals

Separation and divorce often trigger a fundamental shift in personal identity and lifestyle. There’s no shame in taking a breather. You do not need to rush your property settlement, which can be commenced any time up to 12 months after the divorce order is made, or in the case of a de facto relationship, 2 years from the date of separation. The law requires a 12-month separation period before applying for divorce for good reason. Many people need that time to adjust to new living arrangements and routines. Some may rent for a year while deciding on future home ownership or revising their investment strategy to reflect changed cash flow.

Use this time to reflect, plan, and set clear financial goals. Taking a thoughtful approach to saving, spending, and investing can help you move forward with confidence and clarity.

Rebuilding confidence

Separation from a partner, particularly a long-term partner, may cause many women to experience a jolt to their confidence, particularly if they have relied on their partner for financial support and guidance. Seeking out resources like Women in Numbers, support groups, or further education can assist to re-establish self-assurance and reframe their new circumstances as a springboard for growth.

Common pitfalls to avoid

1. Acting in haste: Finalising settlements or signing documents too quickly and without specialist advice (often driven by emotions such as guilt or shame or pressure from the other partner) can result in agreements that don’t reflect true entitlements.

2. Overlooking hidden assets or debts: The worst outcome of any financial settlement is one that leaves you wondering if you made the right decision. Thoroughly investigate all assets such as accounts, loans, family trusts, and business interests. What isn’t disclosed or discovered might leave you feeling dissatisfied with the settlement and unable to move on due to the regret of not being invested in the process at the time. An informed decision is essential to being able to move on, even if you decide to settle for less than your entitlement. Peace of mind is more valuable than the dollar amount.

3. Failing to plan for the future: Accepting a settlement that addresses immediate concerns (e.g., keeping the family home) without considering future needs can lead to regrets down the road.

Common misconceptions

1. Everything is split 50/50: Many believe that “equitable” automatically equals a 50/50 split of the asset pool. While an equal division is appropriate in some cases, the law requires an assessment of each partner’s contributions and future requirements, so the final outcome may be 60/40, 70/30, or another proportion altogether.

2. The relationship starts on the wedding day: The relevant “start date” is when the couple begins living together in a de facto relationship, not the date of the official wedding ceremony. The date of commencement of cohabitation is the date from which the assessment of contributions is made.

3. The separation date ends the asset pool calculation: While separation is a major milestone, the “end date” for valuing the assets that comprise the asset pool is the date of trial or settlement, not the day of separation. Changes to assets (like superannuation growth or additional debt) in the intervening period can and will factor into the final property settlement.
   
   

Separation and divorce can be challenging and often presents a complex intersection of legal rights and financial consequences. This is a reality many women face, especially those who have stepped back from their careers or taken on part-time work to care for others. With the right support, careful preparation, and a focus on your wellbeing, it is possible to navigate this transition with confidence. Trusted professional guidance can help you work toward a fair outcome and emerge feeling stronger, more secure, and empowered for the future.

About the author

Frances Edwards is the Founding Partner of Edwards Moloney Family Law. Frances is a Family Law Accredited Specialist, having been accredited by the Law Society of NSW since 1994. Frances has practiced exclusively in Family Law for over 35 years, covering all aspects of separation, including divorce, property settlements (focusing on high net worth and complex financial structures), parenting arrangements, child support, and family violence. Frances and her team offer pragmatic, solution-focused advice to guide their clients through the legal challenges of a separation and beyond.

Frances Edwards
Partner, Accredited Specialist in Family Law
Nationally Accredited Mediator

frances@emfamilylaw.com.au