Superannuation might not be in your hand today, but it’s still considered part of the marital asset pool.
If you’re separating or divorcing, it’s important to understand how superannuation is treated under family law in Australia, especially when it comes to fair division and financial security moving forward.
Summary: Superannuation is considered property under family law in Australia and can be divided between separating partners. Whether you’re in a marriage or de facto relationship, your superannuation may be included in the overall asset pool during settlement. The division depends on a number of factors including contributions, future needs, and whether a super splitting order is required. Legal advice is essential to ensure fair outcomes and compliance with legal requirements.
Is Superannuation Treated as Property in Family Law?
Yes. Under the Family Law Act, superannuation is considered property, just like real estate, savings, or shares. Even though you may not be able to access it right away, it is included in the asset pool for property settlement.
Both partners’ superannuation balances are usually disclosed and considered when dividing property. This includes:
- Employer contributions
- Self-managed super funds (SMSFs)
- Defined benefit funds
- Accumulated balances, including growth over time
When Can Superannuation Be Split?
Superannuation can be split when:
- A couple is legally married or in a de facto relationship (including same-sex couples)
- They are separating or divorcing
- A formal agreement or court order has been made
This means that one partner can receive a portion of the other’s super via a superannuation splitting order.
There are two ways to formalise this:
- Court Orders – Made by consent or determined by a judge.
- Binding Financial Agreement – A private agreement between the parties, which is legally recognised if it meets certain requirements.
How Is Super Split in a Property Settlement?
There’s no one-size-fits-all formula. The court (or parties through negotiation) will consider:
- The length of the relationship
- Financial and non-financial contributions of each party
- Contributions as homemaker or parent
- Future needs (e.g. age, health, care of children)
- Total asset pool (including property, liabilities, and super)
In some cases, super will be split equally. In others, the division may reflect who contributed more or who needs more financial support.
What Happens After Super Is Split?
A super split doesn’t mean cash changes hands immediately. Instead:
- The agreed or court-ordered amount is transferred to a new or existing super fund in the recipient’s name
- The funds remain preserved until retirement age or another condition of release is met
- Tax implications may apply, depending on the type of super and timing of the split
It’s important to involve a lawyer and often a financial adviser to ensure the correct documentation and compliance with super fund requirements.
Why You Need Legal Help with Superannuation Splitting
Superannuation laws can be complex, especially if:
- One partner is part of a defined benefit or government super scheme
- Self-managed super funds are involved
- One party is unsure of the other’s full financial situation
- A clean and enforceable split is needed for financial security
A family lawyer can help you:
- Understand your rights and entitlements
- Gather the necessary financial information
- Negotiate or apply for super splitting orders
- Ensure the split complies with superannuation laws and fund rules
Need Help with Superannuation and Property Settlement?
If you’re separating and unsure about how your superannuation should be handled, speak to our family law team at Simonidis Steel. We’ll provide clear, practical advice tailored to your situation, so you can move forward with confidence.
Contact Simonidis Steel today for expert family law support.
Key Takeaways
- Superannuation is treated as property under Australian family law and may be included in the overall asset division.
- You can split super through court orders or binding financial agreements.
- The division considers contributions, length of the relationship, and future needs.
- Legal and financial advice is crucial for compliance and fairness.
FAQs
Can I split my partner’s super even if they’re not retired?
Yes. Superannuation can be split even if it’s not accessible yet. The funds will be transferred into your super account and preserved until you meet a condition of release.
Does splitting super reduce the overall asset pool?
No. Superannuation is just one part of the asset pool. If it’s split, the rest of the property may be adjusted to maintain balance and fairness.
Is super splitting automatic in a divorce?
No. You need to apply for a superannuation splitting order or include it in a financial agreement.
Do I need a lawyer to split super?
It’s highly recommended. Mistakes in super splitting can be costly and may lead to delays, rejected applications, or financial loss.
