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Superannuation

Superannuation is property for the purposes of a property division between a separating couple. Because superannuation often represents many years of employer and personal contributions and compound interest, it is usually a significant asset in the property pool of separating couples.

Am I entitled to a super split?

If you were married, there is no minimum length of marriage. Either of you can apply for a superannuation split (or a broader property settlement) after separation, provided you do so within 12 months of your divorce becoming final.

If you were in a de facto relationship, you can only ask the Court to split superannuation (or otherwise apply for it) if at least one of the following applies: the relationship lasted 2 years or more; there is a child of the relationship; the relationship was registered under a State or Territory relationships register; or you made substantial contributions to the relationship and would suffer serious injustice if the Court did not make an order. De facto applications must generally be made within 2 years of separation.

How superannuation can be split

Superannuation can be split either by:

An order of the Federal Circuit and Family Court of Australia.
A superannuation agreement (a financial agreement that deals with a superannuation interest); or
In some cases, for example where an interest can’t yet be split, the Court can make a flagging order. This stops the fund from paying out the benefit and defers the decision on how to split it to a later date.

What splitting doesn't do

Splitting superannuation does not convert superannuation into cash. Instead, the sum is ‘split’ from the member spouse’s superannuation fund and transferred to another fund, either a new fund for the non-member spouse or rolled out to another fund. The split will remain preserved in accordance with the superannuation laws and the individual fund’s conditions of release.

How the split is calculated

A common starting point is to add together the balance of all superannuation funds, divide the total by two, and split from the larger fund to equalise the balances. This is a starting point only. There is no rule that superannuation must be equalised, and the Court (or you, by agreement) must consider what is just and equitable in your circumstances.

For example, you might trade off superannuation for a greater share of other property, or equalisation might not suit a short relationship where one person started with much more super.

Worked example

Amir has $420,000 in superannuation and Beth has $180,000. Combined, their superannuation totals $600,000. To equalise, Beth would generally receive a split of $120,000 from Amir’s fund, bringing each of them to $300,000. This is a simplified illustration only and the actual outcome in any matter depends on contributions, current and future circumstances needs and what is just and equitable.

Defined benefit funds and self-managed super funds

Not all superannuation interests are straightforward to value. Defined benefit interests, which are common in older public sector and corporate funds, are calculated by formula rather than account balance, and generally require a valuation from a qualified actuary.

Self-managed superannuation funds (SMSFs) need input from the fund’s accountant to identify its assets and liabilities, and if the SMSF holds real property, that property will usually need its own valuation.

We work with actuaries, accountants and valuers experienced in family law matters to make sure these interests are properly identified and valued.

Getting information about your former partner's superannuation

The Family Law Act 1975 requires separating parties to provide full and frank disclosure of their financial circumstances, including details of all superannuation funds and the balance of each.

If you don’t know the value of your former partner’s superannuation, you (or your lawyer) can apply directly to their superannuation fund using the Superannuation Information Request Form or seek a Court order requiring disclosure.

We can help you identify the right fund and prepare this request.

How we can help

At Empower Family Law & Mediation, we have experience advising on superannuation matters, including defined benefit, self-managed and accumulation funds, and we work with actuaries, accountants and valuers who specialise in family law. Please contact us on (03) 7020 6542 to discuss how your superannuation fits into your overall property settlement.

FAQ’s

Will I automatically get half of my former partner's super?

No, while it is often the case that superannuation entitlements are split 50/50%, or ‘equalised’, there is no automatic 50/50 split. The Court (or the parties, by agreement) need to work out what is just and equitable, which may or may not result in an equal split.

Can I access my share of the split super straight away?

A super split moves an amount from one fund to another (or to a new account). It does not convert to cash and remains subject to the same preservation rules and conditions of release as any other superannuation.

What if we can't agree on how to split our superannuation?

You can apply to the Federal Circuit and Family Court of Australia.

We can advise you on your options, including negotiation, mediation and if necessary, Court proceedings.

Does it matter if we were never married?

De facto couples are covered by the same superannuation splitting framework, provided you meet the eligibility criteria set out above.

Speak with us

Your first 30-minute consultation is free. Call (03) 7020 6542 or contact our team to discuss your circumstances and next steps.

Phone: (03) 7020 6542

Email: info@empowerfamilylaw.com.au

Let us be your voice in troubled times.

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Binding Financial Agreements (including Prenuptial Agreements)› Child Relocation› Child Support› Consent Orders› De Facto Relationships› Divorce› Family Mediation› Family Violence and Intervention Orders› Grandparents and Other Carers› Parenting and Child Custody› Property Settlement› Separation› Spousal Maintenance› Urgent Family Law Issues›

Splitting is an option, not an obligation

Superannuation splitting law treats superannuation as a different type of property from the rest of the pool. It lets separating couples value their superannuation and split superannuation payments, but adjusting superannuation is not mandatory. Some couples choose to leave their superannuation untouched and balance the pool in other ways.

What is not optional is the timing. If you want superannuation adjusted, it has to be done when you formalise your financial arrangements, whether by agreement or by application to the Court. It is not something you can easily return to afterwards.

The step most people do not expect: notice to the trustee

A superannuation splitting order requires the trustee of the fund to do certain things. Because the order affects the trustee, the trustee has a right to be heard before it is made.

In practice this means the trustee must be given notice of a proposed splitting order before the order can be made — and that applies whether you have reached agreement or the Court is deciding the matter. The requirement comes from rules 1.12(5), 1.12(6) and 10.06 of the Family Law Rules 2021.

This is a common source of delay. Couples who have agreed everything can still find their orders held up because the fund has not been given proper notice, or because the wording of the proposed order does not work for that fund. Dealing with the trustee early, and checking that the fund will accept the order as drafted, usually saves weeks.

If you do not know what your former partner has in superannuation

You are not left to guess. Where you are part of a current property settlement proceeding, you or your lawyer can apply directly to the Court for your spouse, former spouse or de facto partner's superannuation information held by the Commissioner of Taxation. The power comes from section 90XZJ of the Family Law Act 1975.

How it works in practice:

The request is made on the approved Superannuation Information Request form through the Commonwealth Courts Portal. You must already be in a current property proceeding — it is not available beforehand.
Give as much identifying information about the other party as you can. The more you provide, the better the chance the Australian Taxation Office can match the record.
A response is usually available on the portal within about 7 days, and is visible to all parties and their lawyers.
The reply will say one of three things: the individual was located and superannuation was found; the individual was located and no superannuation was found; or the individual could not be located.

Two cautions matter. The ATO information may not reflect an up-to-date balance and should not be relied on by itself — current balances are obtained from the fund using Form 6 in the Court's Superannuation Information Kit. And the information is released only for the purposes of the proceeding: it must not be passed to anyone outside it, and recording or on-disclosing it can be an offence under the Taxation Administration Act 1953.

Where to read more

The Court publishes a factsheet, Family law and superannuation, covering the steps involved in splitting an interest, and a Superannuation Information Kit containing the forms used to obtain fund information.

The Court information on this page reflects the published guidance of the Federal Circuit and Family Court of Australia on superannuation and superannuation visibility, as at 26 October 2026. It is general information only, not legal advice, and does not replace advice about your own circumstances.

Will I automatically receive half of my former partner's superannuation?

No. Superannuation splitting law lets separating couples value and split superannuation, but adjusting it is not mandatory and there is no rule that balances must be equalised. Equalising is a common starting point, not an entitlement. Superannuation forms part of the overall property pool and is assessed alongside everything else against what is just and equitable, taking in contributions and future needs. Some couples deliberately leave superannuation untouched and balance the pool in other ways, for example by trading superannuation against a greater share of the equity in a home, which can suit a party who needs accessible funds now rather than preserved funds later. Equalisation may also be inappropriate for a short relationship where one person began with a substantially larger balance.

Does splitting superannuation give me cash?

No, and this is the most common misunderstanding. Splitting does not convert superannuation into a cash asset. The amount is split from the member spouse's fund and transferred to another fund, either a new fund for the non-member spouse or rolled into an existing one, and it remains subject to superannuation law and the receiving fund's conditions of release. In practice that usually means it stays preserved until you reach retirement age, exactly as it would have if it had never been split. This matters when you are weighing a superannuation split against other property: a dollar of superannuation and a dollar of cash in a bank account are not equivalent to someone who needs to rehouse themselves and their children now.

Why does the superannuation fund need to be notified?

Because a splitting order requires the trustee of the fund to do certain things, and as a matter of procedural fairness a person affected by an order has the right to be heard before it is made. The trustee must therefore be given notice of a proposed splitting order before it can be made, whether you have reached agreement or the Court is deciding the matter. Where consent orders are sought, written notice must be served on the trustee at least 28 days before filing, setting out the terms of the orders that will bind them and telling them they may object within 28 days. If they do not object you may file, but you must file proof of their non-objection and proof of the current value, or the Court cannot make the orders.

What if I do not know what my former partner has in superannuation?

You are not left to guess. Where you are part of a current property settlement proceeding, you or your lawyer can apply directly to the Court for your spouse, former spouse or de facto partner's superannuation information held by the Commissioner of Taxation, using the approved Superannuation Information Request form through the Commonwealth Courts Portal. You must already be in a current proceeding, so it is not available beforehand. Provide as much identifying information about the other party as you can, because the more you give the better the chance the Australian Taxation Office can match the record. A response is usually available on the portal within about 7 days and is visible to all parties and their lawyers.

Can I rely on the information the ATO provides?

Not on its own. The superannuation information released through that process may not reflect an up-to-date account balance and should not be relied on by itself; the current figure is obtained from the fund using the forms in the Court's Superannuation Information Kit. The reply will say one of three things: the individual was located and superannuation found, located and no superannuation found, or could not be located. There are also strict limits on use: the information is released only for the purposes of the proceeding, must not be disclosed to anyone outside it, and making a record of it or passing it on can be an offence under taxation law. Treat it as evidence in the case rather than as general information about the other party.

What if the interest cannot be split yet?

Where an interest cannot presently be split, the Court can make a flagging order instead. A flag prevents the fund from paying out the benefit and defers the decision about how the interest should be divided to a later date, which keeps the position protected while the obstacle is resolved. Defined benefit funds and self-managed superannuation funds raise their own valuation and implementation questions: a defined benefit interest may need to be valued using a prescribed method rather than a member statement balance, and a self-managed fund often holds illiquid assets such as property that cannot simply be divided. Both commonly require accounting or actuarial input alongside legal advice, so identify early which type of interest is involved.

Does it matter whether we were married?

No. De facto superannuation interests can be split in the same way as those of a married couple, provided the jurisdictional requirements for a de facto financial case are met, which include a geographical connection to a participating jurisdiction, being every state and territory except Western Australia. The timing rule differs though: a de facto applicant must generally act within two years of the breakdown of the relationship, where a married person has 12 months from the date the divorce becomes final. Either way, superannuation must be dealt with at the point you formalise your financial arrangements, whether by consent orders or a financial agreement, because it is not something that can easily be revisited afterwards.