When people are going through a separation, one of the most common questions is:
“What’s fair?”
But in Australian family law, the Court doesn’t actually use the word fair. Instead, it uses a slightly different phrase:
“Just and equitable.”
At first glance, those words might sound like they mean the same thing, but they don’t. And understanding the difference is really important.
It’s Not About What Feels Fair
“Fair” is a very personal concept.
What feels fair to one person may feel completely unfair to another. For example:
- One person might think fairness means a 50/50 split
- The other might feel they should receive more because they cared for the children
- Another might believe they should retain assets they brought into the relationship
All of those views can be valid, but the Court isn’t deciding based on feelings.
So what does “just and equitable” mean?
Put simply, “just and equitable” means fair in a legal sense, having regard to all of the circumstances, not just one person’s perspective.
It requires the Court to:
- look at the whole picture, and
- reach an outcome that is reasonable, balanced, and appropriate overall
A practical way to think about it
A helpful way to understand this is: “Just and equitable doesn’t mean equal, it means appropriate.” The Court is not trying to make both people equally happy. It is trying to reach a result that makes sense based on:
- what each person contributed
- what each person needs moving forward
- and the overall circumstances of the relationship
How the court works this out
The Court doesn’t jump straight to a number or percentage. Instead, it works through a structured process:
- identifying all property
- assessing contributions (financial and non-financial)
- considering future needs
- and then stepping back to ask:
Is this outcome just and equitable?
This final step is important. It allows the Court to sense-check the result and ensure it is not unfair or impractical.
Why it might not feel “fair”
Sometimes, even when an outcome is legally just and equitable, it may not feel fair to one party.
For example:
- A person who earned most of the income may feel they should receive more
- A person who cared for the children may feel their contribution isn’t fully recognised
- One party may feel emotionally attached to a particular asset
The law acknowledges these complexities, but it does not base decisions on emotion. It focuses on achieving a balanced outcome across all factors.
Every case is different
There is no standard formula in family law. Two couples with similar assets can receive very different outcomes because their:
- contributions
- roles in the relationship
- future needs
- and personal circumstances
are different. That’s why “just and equitable” is flexible; it allows the Court to tailor the outcome to the people involved.
A final thought
If you’re going through a separation, it can be helpful to shift the question from:
“What’s fair?” to: “What is a reasonable outcome in all the circumstances?”
That is ultimately what the Court is trying to achieve.
Understanding this can take some of the frustration out of the process and help you focus on reaching a practical, workable resolution for your future.
