Superannuation can be one of the most significant assets accumulated during a relationship. When a marriage or de facto relationship ends, superannuation generally needs to be considered as part of the overall property settlement.
Australian family law allows superannuation to be divided between separating couples. The process involves identifying the relevant superannuation interests, obtaining information about them, valuing them and then deciding whether they should be divided by agreement or Court order.
A superannuation split does not usually mean that the money becomes available as cash. The amount transferred generally remains within the superannuation system and is subject to the rules governing when superannuation can be accessed.
Every property settlement is different. Getting legal advice early can help you understand how your superannuation and your former partner's superannuation may affect your settlement.
How is superannuation treated after separation?
Under the Family Law Act 1975, superannuation is treated as property for family law purposes.
This means that superannuation interests generally need to be identified and disclosed when a couple is negotiating a property settlement, even if the parties ultimately decide not to split their superannuation.
The law provides a process for valuing and dividing superannuation between separating couples, including married and de facto couples.
A superannuation interest can generally be divided by:
a superannuation agreement, including an agreement dealing with superannuation as part of a financial agreement; or
a Court order, including consent orders or orders made following a Court hearing.
The Family Law (Superannuation) Regulations 2025 operate alongside the Family Law Act and provide rules concerning the valuation of superannuation interests, the implementation of payment splits and the information that superannuation trustees must provide.
The five steps involved in splitting superannuation
Step 1 – Identify and obtain information about the superannuation
The first step is to identify the superannuation interests held by each party and obtain sufficient information to understand their nature and value.
A superannuation interest is a person's entitlement to receive superannuation benefits. Those benefits are generally held by a superannuation fund trustee until the member becomes entitled to access them.
An eligible person can request information about a superannuation interest from the relevant fund trustee.
This may include:
the member of the superannuation fund;
the member's former spouse;
the legal personal representative of a deceased member or former spouse; or
a person intending to enter into a superannuation agreement with the member.
The appropriate forms must be completed and provided to the trustee. The Family Court provides superannuation information kits containing the forms and information required for this process.
The superannuation fund may charge a fee for providing the requested information. In many cases, the fee must be paid before the information is released.
What if you do not know where your former partner's superannuation is held?
It is not uncommon for a person to be unaware of all of their former partner's superannuation interests.
If you are already involved in family law proceedings seeking financial or property orders, you may be able to apply to the Court for information about your former partner's superannuation interests held by the Australian Taxation Office (ATO).
The information obtained from the ATO can assist in identifying the relevant superannuation funds. Current information can then be requested directly from the relevant trustee.
This process is generally available only where there is an existing family law property or financial proceeding.
Step 2 – Value the superannuation
Once the relevant information has been obtained, the superannuation interest must be valued before the Court can consider making a superannuation splitting order.
The method used to value superannuation depends on the type of interest.
For many superannuation funds, the trustee will provide information that states the value of the interest or provides the information necessary to calculate it.
Some interests, however, are more complex and may require an expert valuation.
For example, a self-managed superannuation fund (SMSF) or a Defence Superannuation Fund may require additional consideration and assistance from an accountant or other appropriately qualified expert.
It is important to obtain legal advice where the value or nature of a superannuation interest is uncertain or complex.
Step 3 – Decide how the superannuation will be divided
Once the superannuation interests have been identified and valued, the parties can decide how they should be dealt with as part of the overall property settlement.
There are several ways to formalise an agreed superannuation split.
Superannuation agreement
The parties may enter into a formal agreement dealing with their superannuation interests.
The agreement must comply with the requirements of the Family Law Act. Depending on the type of agreement, each party may also be required to obtain independent legal advice.
Because a superannuation agreement can have significant financial consequences, each party should obtain independent legal advice before signing.
Consent orders
Where the parties have reached an agreement, they can apply to the Court for consent orders.
If the Court makes the proposed orders, the superannuation split can generally be implemented without the need for a contested hearing.
Court proceedings
If the parties cannot reach an agreement, either party may ask the Court to determine how the superannuation should be dealt with.
Starting Court proceedings does not necessarily mean the matter will proceed to a final hearing. The parties can negotiate and reach an agreement at any stage. If an agreement is reached, it can generally be formalised by consent orders.
Step 4 – Notify the superannuation trustee
Where a Court order affecting a superannuation interest is sought, the superannuation fund trustee must be given an opportunity to consider the proposed order.
This is known as procedural fairness.
The trustee needs to know what orders are being sought because it will ultimately be responsible for implementing the superannuation split.
The required Court documents must be served on the trustee in accordance with the applicable legislation and Court rules. The trustee must also receive the required notice of the proposed orders and, where applicable, the hearing date.
This is an important procedural step. Failure to properly notify the trustee can cause problems with the proposed orders or their implementation.
Step 5 – Implement the agreement or Court order
Once a superannuation agreement has been properly made or the Court has made the relevant orders, the superannuation fund trustee must implement the split in accordance with the agreement or order and the applicable superannuation legislation.
Where a Court order has been made, a sealed copy of the order should be provided to the relevant superannuation fund trustee.
The trustee will then take the necessary steps to give effect to the superannuation split.
The amount transferred will generally remain in the superannuation system. It will not usually become immediately available as cash and will remain subject to the rules governing access to superannuation.
Does superannuation always have to be split?
No.
The law provides a mechanism for splitting superannuation, but a superannuation split is not required in every property settlement.
The appropriate approach depends on the circumstances of the parties and the overall property pool.
For example, the parties may agree that each person will retain their own superannuation while other assets are divided in a different way.
However, superannuation should generally be identified and disclosed as part of the property settlement process. It should not simply be overlooked when assessing the overall financial position of both parties.
How We Can Help
Superannuation can be a complex part of a property settlement, particularly where there are multiple superannuation funds, significant balances, defined benefit interests or a self-managed superannuation fund.
Our family law team can assist you throughout the process, including:
Identifying superannuation interests
We can help you identify the superannuation interests held by you and your former partner and advise you about the information that should be obtained.
Obtaining and assessing information
We can assist with the process of obtaining information from superannuation funds and, where appropriate, identifying superannuation interests through the available Court processes.
Valuing superannuation
We can help determine the appropriate method of valuing a superannuation interest and advise when an expert valuation may be required.
Negotiating the property settlement
We can advise you about how superannuation should be considered alongside the other assets and liabilities in your property pool and assist you in negotiating a fair settlement.
Preparing agreements and Court orders
If an agreement is reached, we can assist with preparing the appropriate documentation, including a superannuation agreement or application for consent orders.
If an agreement cannot be reached, we can advise you about commencing or responding to Court proceedings.
Ensuring the process is followed correctly
Superannuation splitting involves specific procedural requirements. We can assist with the necessary notices, Court documents and communication with the superannuation trustee to help ensure that the agreement or orders can be properly implemented.
Providing advice tailored to your circumstances
There is no single approach that is appropriate for every separating couple. We can consider your overall financial circumstances and explain how superannuation may affect your property settlement.
If you are separating or negotiating a property settlement, obtaining legal advice early can help you understand your rights and avoid costly mistakes.
Frequently Asked Questions
Is superannuation included in a property settlement?
Generally, yes. Superannuation is treated as property for family law purposes and should generally be identified and disclosed when assessing the parties' financial circumstances.
However, this does not necessarily mean that the superannuation must be physically divided between the parties.
Does my former partner automatically get half of my superannuation?
No.
There is no automatic rule that a former partner is entitled to 50% of your superannuation.
The appropriate division depends on the circumstances of the relationship and the parties' overall financial position. The treatment of superannuation forms part of the broader property settlement.
Can we agree to keep our own superannuation?
Yes, it may be possible for parties to agree that each person will retain their own superannuation.
However, the overall settlement should be considered carefully to ensure that the agreement properly takes account of the parties' respective superannuation and other assets and liabilities.
Can I access the superannuation immediately after it is split?
Generally, no.
A superannuation split does not normally convert the amount into cash that can be immediately withdrawn. The transferred amount generally remains within the superannuation system and is subject to the applicable rules governing access to superannuation.
What if I do not know how much superannuation my former partner has?
If you are already involved in eligible family law proceedings, there may be a process for obtaining information about your former partner's superannuation interests held by the ATO.
Once a fund is identified, further information can generally be requested from the relevant trustee.
Does every type of superannuation get valued in the same way?
No.
Different types of superannuation interests can be subject to different valuation methods.
Some interests are straightforward to value, while others, such as certain defined benefit interests or self-managed superannuation funds, can be more complex and may require expert assistance.
Do we have to go to Court to split superannuation?
No.
If you and your former partner can reach an agreement, the superannuation split may be formalised through an appropriate agreement or by applying for consent orders.
Court proceedings may be necessary if an agreement cannot be reached.
Does the superannuation fund need to be notified?
Where a Court order affecting a superannuation interest is sought, the superannuation trustee must generally be given an opportunity to consider the proposed order.
This is known as procedural fairness and is an important part of the superannuation splitting process.
What happens after the Court makes a superannuation order?
The relevant superannuation trustee will need to implement the order in accordance with the order and the applicable superannuation legislation.
A sealed copy of the order should generally be provided to the trustee so that the necessary steps can be taken.
Should I get legal advice before agreeing to a superannuation split?
Yes.
Superannuation can have a significant impact on your overall property settlement, and the correct approach depends on your individual circumstances.
Before signing an agreement or consenting to orders dealing with superannuation, you should obtain independent legal advice about your rights, obligations and the proposed settlement.
Make an appointment with our experienced family law team today to discuss your matter.
This article is general information only and does not constitute legal advice.
