Has Your Ex Decided You're Not Getting More Than 50/50? Here's How to Negotiate What's Actually Fair

Has your ex told you that you're not getting anything more than 50/50  or that you're not getting anything at all? Have they appointed themselves the boss of your property settlement, and you're starting to think, “who died and made you boss?”

Good question. Because here's the thing: your ex is not the boss of the law.

In this episode of The Divorce Course Podcast, Mum (with her 35 years in family law) and I walk through how to negotiate with an ex who's dug in at 50/50 – and why the way most people go about it is completely backwards.

Quick note before we start: this is general information about Australian family law, not legal advice. Every situation is different, so always get advice from a qualified family lawyer about your circumstances.

Why your ex refuses to budge

It's usually not about the money it's actually about winning. Mum has always said that whatever makes someone really good in business generally makes them really bad at negotiating in family law. They're looking for a deal where they come out on top, and “you get more than me” feels like losing.

Some exes also genuinely believe that because they earned the income, they're entitled to keep most of it  and the person who stayed home raising the kids deserves less. The law sees it very differently.

Mum's number one rule: don't negotiate in percentages

The biggest mistake we see? Yelling percentages at each other. “I want 60/40.” “No, 80/20.” It becomes a tug of war with no outcome, because in the end, consent orders aren't written in percentages – they're written in actual assets and dollar amounts.

And even if you agree on 50/50, the next fight is “50% of what?” Suddenly you're arguing over the value of every car, couch and camping trailer, with your ex inflating the value of your things and deflating theirs.

So keep your percentage to yourself (and your lawyer). You can absolutely work out what you believe you're entitled to, you just don't say the number out loud to your ex. You negotiate the facts instead, and the number takes care of itself.

What the court actually looks at

When the Family Court divides property, it generally works through a process: whether orders are needed at all, then your financial contributions before, during and after the relationship, your non-financial contributions, your homemaking and parenting contributions – and then your current and future circumstances (what we used to call “future needs”).

Mum's favourite way to picture contributions is a big polythene pipe. The court can't unpick ten or twenty years of a relationship, so it mostly looks at what went IN at the start, the big lumps that got plumbed in along the way (inheritances, lotto wins, compensation payouts, family money), and what's happened since separation came out the other end.

Non-financial contributions count too, quitting your job to raise the kids, keeping the household running, living rent-free with your in-laws so you could both save. And after separation, the court can look at who's been caring for the children, who's been paying the mortgage, and who's been sitting pretty in a paid-off house while the other person rents.

Then come your current and future circumstances: earning capacity, age and health, who has the care of children under 18, whether you supported your ex through a degree. These can all shift the needle.

Is asking for more than 50% greedy?

No. If that's what the facts support, it's not greedy, no matter what name your ex calls it. There's a well-known case, Waters & Jurek, where the court described 50/50 as a starting point “or thereabouts” but it's not binding on anyone. Long marriages between people of similar ages often do land around equal. Shorter marriages with young kids, unequal earning capacity or big initial contributions? That's where it's seldom 50/50.

Get your mindset sorted first

If you say “I deserve more than half” while not believing it yourself, your ex will hear the wobble – and they'll wait you out. So before you negotiate:

• Do the future self test. If the you of five years' time could come back and talk to you right now, what would they say about giving in just to make it stop?
• Watch the word “amicable”. Amicable is when both people are okay with the outcome – not when one person agrees to everything to keep the peace.
• Expect the give-in wall. Negotiation fatigue is real. You'll hit the wall more than once. Hitting it doesn't mean giving in – it means taking a break, talking to a bestie or a counsellor, and coming back.
• Try a vision board. Yes, really. Mine had a little house, a little kitchen and a picnic on it – and when the pressure came to accept less, looking at it reminded me what I was holding on for.

Put it in writing – and get buy-in fact by fact

Instead of announcing a percentage, write to your ex setting out the factors with the proof attached. The property search showing the house you owned before you met. The redundancy payment. You're looking for small concessions: “oh yes, that's right, you did have that.”

Each agreed fact leads them (or their lawyer) toward the reality of what a court would likely order. As Mum puts it, you're not trying to beat them in a deal, you're educating them about where this actually ends up.

Back it with the law

This is where it stops being opinion. Section 79 of the Family Law Act 1975 sets out how the court assesses contributions and current and future circumstances (with mirror provisions for de facto couples). Mum's favourite trick: look the section up on AustLII, then click “note up” on the right of the page – it brings up recent cases on that exact section, newest first. Attach the section and a recent case to your letter, and suddenly any lawyer your ex sees has to deal with it.

Three traps to avoid

1. Equalising the super. Super is just a different type of property. If you need cash to re-house yourself and you're decades from retirement, more super and less cash can leave you stuck.
2. Giving in to make it stop. Their strategy is sometimes simply to outlast you. The goalposts will move again the moment you agree.
3. Agreements made under pressure. “I'm not leaving the house until you sign” is not negotiation. Generally, an agreement wrenched out of you under duress isn't worth much – and if this is happening to you, call 1800 RESPECT (1800 737 732) and reality-check it, because post-separation abuse doesn't have to be physical to be abuse.

The big picture

Most people negotiate their property settlement backwards – they start with the percentage. Do the opposite: get buy-in on what's in the property pool, then on your contributions, then on your future circumstances, backed by the law. Once you've done all the arguing with facts, the number argues for itself.

🎧 Listen to the full episode here

Episodes mentioned:

Percentages in Divorce Property Settlements Explained – https://podcasts.apple.com/au/podcast/percentages-in-divorce-property-settlements-explained/id1503451022?i=1000729446519

The Pitfalls of Premature Percentage Negotiations – https://thedivorcecoursepodcast.libsyn.com/dont-argue-percentages-1642024-3-04-pm

Big or Small Property Pool? How Size Changes Your Divorce Settlement – https://open.spotify.com/episode/697VeO4FrXQt9LYaabHtUC

BATNA in Divorce: How to Negotiate Like a Pro – https://podcasts.apple.com/au/podcast/batna-in-divorce-how-to-negotiate-property-and/id1503451022?i=1000719715152

Coercive Control & Domestic Violence in Family Court – https://podcasts.apple.com/au/podcast/coercive-control-domestic-violence-in-family-court/id1503451022?i=1000764231660

Super Split Myths: Why Equalising Isn't Always Fair – https://podcasts.apple.com/au/podcast/super-split-myths-why-equalising-isnt-always-fair-in/id1503451022?i=1000708394387

Convincing the Unconvincible in Divorce Negotiations – https://thedivorcecoursepodcast.libsyn.com/ep-24-convincing-the-unconvincable-26621-2-50-pm

Want the step-by-step version with our contributions and future needs spreadsheet? That's all inside the DIY Divorce Blueprint at www.thedivorcecourse.com.au

All our best,

Laura & Lyn

Your Guides By Your Side

Co-Hosts of THE DIVORCE COURSE PODCAST

📞 1800 RESPECT – 1800 737 732 (24/7 family violence support)  |  Lifeline – 13 11 14  |  Police – 000

This blog is general information only – it is not legal advice. It reflects Australian family law, which may have changed since publication, and may not apply to your situation or jurisdiction. Always get independent legal advice before making decisions.