Dividing assets during a relationship breakdown is never easy, especially when it comes to one of the most valuable yet least understood assets — superannuation. Whether you’re parting ways after a marriage or de facto relationship, superannuation is treated as property under the Family LawAct 1975 and can be divided accordingly. This is known as superannuation splitting.
This comprehensive guide will explain what superannuation splitting is, how it works in divorce or separation, and why it’s important for de facto couples, married spouses, and anyone involved in a property settlement in Australia.
What Is Superannuation Splitting?
Superannuation splitting refers to the process of dividing superannuation benefits between separating or divorcing couples. Although super is held in an individual’s name, it is subject to division just like other assets. The process is governed by the Family Law Superannuation Regulations, which outline how super must be disclosed, valued, and split.
Contrary to common belief, super doesn’t become instantly accessible — any split entitlements remain subject to conditions of release, such as retirement age.
Who Can Split Superannuation?
Superannuation splitting applies to:
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Married couples divorcing under Australian law
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De facto couples, including same-sex couples, who have separated
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Separating couples seeking a fair division of property
To split super, you do not need to be legally divorced. However, a splitting order or superannuation agreement is typically required to formalise the arrangement.
Why Superannuation Splitting Matters
Super can be one of the largest financial assets a person holds. In long-term relationships, one partner often has significantly more super due to wage gaps or career interruptions (e.g., raising children). Without splitting, the lesser-earning partner may leave the relationship with no retirement security.
The benefits of superannuation splitting include:
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Fair distribution of long-term financial assets
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Recognising non-financial contributions in the relationship
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Creating financial independence for both parties
What Is a Superannuation Splitting Order?
A superannuation splitting order is a legal directive made by a court — usually the Federal Circuit and Family Court of Australia — instructing a super fund to transfer a portion of one party’s super to the other.
This can be done through:
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Court orders after a contested hearing
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Application for consent orders (if both parties agree)
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A formal superannuation agreement, drafted with the assistance of legal professionals
Each option requires compliance with legal procedures, and it’s vital to seek legal advice before proceeding.
Understanding the Splitting Process
Step 1: Disclosure and Documentation
You must obtain accurate details about each partner’s superannuation interests. This involves:
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Requesting fund balances using the Superannuation Information Kit
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Completing a Form 6 Declaration
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Contacting the managed superannuation fund for current statements
This disclosure is mandatory in all property settlement cases.
Step 2: Valuation of Super
Super must be properly valued before it can be split. The method depends on the type of fund:
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Accumulation funds: Valued based on the current account balance.
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Defined benefit funds: May require actuarial valuation due to complex structures.
The Family Court relies on accurate valuation to ensure a fair split.
Step 3: Choosing the Method of Splitting
Super can be split in several ways:
Lump Sum Base Amount
A fixed amount is transferred from one party’s super to the other.
Example:
A court orders $100,000 to be transferred from one partner’s fund to the other’s.
Percentage Split
A percentage of current or future super is transferred.
Example:
35% of all super withdrawals are directed to the ex-partner until the amount is exhausted.
Both parties can nominate a preferred method in their agreement or application.
Step 4: Formalising the Split
Once both parties agree — or the court decides — a splitting order or superannuation agreement is served to the fund trustee. The trustee has 28 days to respond or object, depending on fund rules.
If no objection is raised, the split is processed, and the receiving party’s new balance is preserved until a condition of release is met.
Super Splitting and De Facto Relationships
In Australia, de facto relationships have the same legal rights as marriages when it comes to superannuation. This includes:
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Long-term de facto couples (usually 2+ years)
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Couples with a child together
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Relationships registered under state law (e.g., in NSW)
De facto couples must initiate super splitting within 2 years of separation unless both agree to extend the timeline.
Legal Pathways to Super Splitting
1. Superannuation Agreement
This is a formal agreement that outlines how super will be split. Both parties must obtain independent legal advice and confirm that the agreement complies with the Family Law Superannuation Regulations.
2. Consent Orders
Where parties agree on the terms, an application for consent orders can be submitted to the Family Court of Australia. This is a more cost-effective option than litigation.
3. Court Order Following a Dispute
If no agreement can be reached, one party may apply to the Federal Circuit and Family Court for a decision.
When Can You Access the Split Super?
Even after a successful super split, you cannot withdraw the money immediately unless you meet a condition of release, such as:
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Reaching preservation age (typically 60+)
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Retirement
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Total and permanent disability
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Terminal illness
Super remains in the superannuation system until then, preserving your retirement nest egg.
Important Rules and Limitations
✅ Concessional Contribution Cap
Transferring large amounts via super splitting may trigger concessional contribution cap issues if not properly managed. This cap limits how much can be contributed pre-tax to a super fund.
✅ Deadlines
You must act within legal timeframes:
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12 months after divorce finalisation
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2 years after de facto separation
Missing these deadlines can limit your rights.
✅ Special Fund Rules
Some funds, such as public sector or military pensions, have unique rules. Always check with the fund before finalising your split.
Superannuation Splitting Order Example
Let’s say John and Lisa separate after 15 years of marriage. John has $300,000 in super; Lisa has $100,000. They agree (with legal advice) that John will transfer $50,000 of his super to Lisa.
They complete the required forms, attach the superannuation information kit, and file an application for consent orders. The family court reviews and approves it. The trustee processes the transfer, and Lisa’s new balance is preserved until she reaches retirement age.
Super Splitting Lawyers: Do You Need One?
Yes — due to the complexity of super laws and strict compliance requirements, it is highly recommended to engage a superannuation splitting lawyer. They can:
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Help identify super entitlements
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Draft or review agreements
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Lodge court applications
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Liaise with super funds and trustees
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Ensure compliance with the Family Law Act and Superannuation Regulations
Common Questions About Super Splitting
❓ What is superannuation splitting in divorce?
It’s the process of legally dividing super benefits between ex-spouses as part of the property settlement.
❓ Can I split super without going to court?
Yes, via a binding financial agreement or consent orders, provided both parties agree.
❓ Can super be used for child support or spousal maintenance?
No. Super splitting is separate from maintenance obligations, although both may be considered in a broader settlement.
Conclusion
Superannuation splitting is a vital aspect of separation and divorce settlements in Australia. Whether you are part of a marriage or de facto relationship, your rights to super must be understood and protected. From applying for a splitting order to navigating fund rules and conditions of release, the process requires careful legal and financial planning.
Always seek legal advice before finalising any agreement, and consider working with a superannuation splitting lawyer to ensure your retirement future is secured.
Need professional help with a superannuation split?
At Lyon Legal Services, we assist separating couples, de facto partners, and married spouses across NSW with tailored legal solutions for super and property settlements. Contact us today for confidential advice and expert guidance.
