Settlement, what a fair deal actually looks like

My ex's lawyer opened with 65/35 in her favour. My lawyer countered 55/45 in mine. We landed at 52/48 to her. I remember thinking, in the carpark afterwards, that I had no idea whether 52/48 was a good outcome or a mugging. I'd just nodded when my solicitor said it was.

Months later, after I'd actually read the Family Law Act and talked to enough other blokes, I worked out that 52/48 was about right for our situation. Slightly favourable to her because the kids spent more nights with her, slightly favourable to me because I'd contributed the deposit pre-marriage, roughly even on contributions during. The number wasn't a mugging or a win. It was just maths.

Most men go into settlement without knowing the maths. That's how you end up with a deal you'll resent for a decade.

There is no 50/50 default

State this clearly because it's the most common myth: Australian family law does not start at 50/50. It starts at zero and works up.

The framework is section 79 of the Family Law Act 1975, and it's a four-step process that any judge or registrar applies. Your settlement, whether mediated or court-ordered, will be measured against it. Knowing the four steps is the difference between negotiating from data and negotiating from feelings.

The four steps, plainly

Step one: identify and value the pool.

Every asset, every liability, both names, joint names, sole names, in Australia or overseas. Real property, super, businesses, shares, vehicles, jewellery, art, crypto, tax debts, credit cards, family loans (genuine ones), inheritances received during the relationship.

Two important pool issues:

• Super counts. It's a special category (you can't just hand it over without a super-splitting order) but it's in the pool.
• The pool is valued as at the date of the hearing or settlement, not the date of separation. If your shares went up since you split, the increase is in the pool. If they went down, the decrease is too.

Step two: assess contributions.

Two types: financial and non-financial.

• Financial contributions: who put in what, when. Pre-marriage assets (the house deposit you brought in), inheritances during, redundancy payouts, lottery wins, gifts from family.
• Non-financial contributions: parenting, homemaking, building / renovating the house, supporting the other's career.

The longer the marriage, the less the initial contributions matter. A pre-marriage deposit in a 4-year marriage matters a lot. The same deposit in a 25-year marriage barely registers (it gets "absorbed" into the joint enterprise).

For most middle-income Australian marriages of 10+ years with kids, the contributions step lands somewhere close to even, with adjustments for unusual financial inputs.

Step three: assess future needs (s75(2) factors).

This is where the percentage shifts from "even contributions" toward whoever has greater future need. Factors include:

• Age and health of each party.
• Income, earning capacity, financial resources.
• Care of children under 18.
• Length of relationship and effect on earning capacity.
• Eligibility for pensions / super.

The big one in most matters: who has primary care of the kids. The parent with majority care typically gets a 5% to 15% adjustment in their favour at this step, sometimes more, depending on age and income disparity.

Step four: just and equitable check.

The court (or you) stands back and looks at the final number. Is it actually fair given the whole picture? If not, adjust. This step exists to stop the maths from producing absurd outcomes.

What this means in practice

A typical 12-year marriage, two kids primarily with mum, both working but his income materially higher, modest pre-marriage contributions roughly equal, will often land somewhere around:

• Contributions: roughly 50/50.
• Future needs adjustment: 5% to 12% to mum.
• Final split: 55/45 to 62/38 in her favour, including super.

Your matter will differ. The framework doesn't.

The categories of "things she'll ask for" and what they're really worth

• The house. Either you keep it (and pay her out), she keeps it (and pays you out), or you sell. Keeping the house only makes sense if you can refinance the mortgage in your name alone and afford the repayments on a single income.
• Spousal maintenance. Separate from property division. Available if she can't support herself adequately and you can. Not automatic. Often time-limited (12 to 24 months while she retrains / re-enters workforce). Less common than people think.
• Super splitting. A super-splitting order moves a percentage or dollar amount of your super into a fund in her name. You don't get cash, neither does she (it stays preserved). This is often the single largest item in the pool.
• Child support. Separate again. Calculated by formula via Services Australia based on combined income, percentage of care, and number of children. Not negotiated like property. (You can do a private agreement, but it has to meet minimum levels.)
• Costs. Each side usually pays their own legal costs. Cost orders against one party are unusual unless someone has behaved badly in the proceedings.

What you bring to the table

Your job in settlement is to know:

• The pool. Down to the dollar.
• The contributions story. Specific examples, documents, dates.
• The future-needs argument. Both sides, honestly.
• The s79 percentage range a court would likely land in.
• Your three numbers (walk-away, realistic, optimistic), expressed as both percentages and dollars.

If you walk in with that, you're negotiating. Without it, you're guessing.

The hidden value items

Most blokes obsess over the house and miss these:

• Long-service leave entitlements. They're property if accrued during the relationship.
• Tax losses. Carried-forward losses can have real value.
• Frequent flyer points and other "soft" assets. Sometimes worth thousands.
• Insurance policies with surrender value.
• The capital gains tax liability hidden inside an asset. A $500k investment property with a $200k embedded CGT bill is not a $500k asset. It's a $440k asset (roughly, depending on rate). Argue for the after-tax value.
• The transfer costs. Stamp duty, real estate agent fees, conveyancing. These come off the pool, not just out of your pocket.

What a fair deal looks like

A fair deal:

• Reflects the s79 framework, not just what one of you "feels".
• Accounts for after-tax, after-cost values.
• Includes a binding super split if there's super disparity.
• Is captured in consent orders (Form 11 + Annexure A), not a handshake.
• Lets you both move on. If either of you can't live with it, it's not done.

An unfair deal:

• Surrenders pre-marriage contributions in a short marriage.
• Hands over the house without a refinance plan.
• Trades cash today for promises tomorrow.
• Skips super-splitting because "it's too complicated".
• Ignores the contribution work the other person did at home for a decade.

The bit men get wrong

We tend to fight hardest for the things with the lowest dollar value (the workshop tools, the boat, the old motorbike) and concede the things with the highest (super, future-needs adjustment, embedded tax). The emotional weight of an asset is not its actual weight in the pool.

Fight for the right line items.

Pool, contributions, needs, fair.