Superannuation and divorce in Australia - Can I protect my super?
22 April 2025
Dividing finances when going through a separation or divorce can be complicated, and superannuation is one of those assets that causes much confusion. Superannuation is, in many cases, the second-largest asset an individual has after the family home, so how superannuation is handled in a property settlement can have a significant impact on the long-term financial security of each involved party.
Common questions that arise are:
Do you have to split superannuation in a divorce?
How is superannuation divided in a divorce?
How do you protect superannuation in a divorce?
Could you be entitled to your former partner’s super?
If you split super, do you receive the funds straightaway or do you have to wait till retirement?
In this article, we’ll do our best to answer those questions. Firstly, we’ll cover how superannuation is treated during separation or divorce under Australian family law.
How superannuation is classified in a divorce
Under the Family Law Act 1975 in Australia, superannuation is considered part of the asset pool divided between separating or divorcing partners. This means it is deemed as ‘property’, despite the fact that you can’t access it until you retire.
Do you have to split superannuation in a divorce in Australia?
Not necessarily, however, under Australian law, it's required that all superannuation interests be disclosed as part of property settlement negotiations. Disclosing super assets does not mean they will be split, however, they will be considered as part of the pool of assets to be split as part of a fair and equitable division of assets. If the superannuation is not split, it may either be offset, or it is left untouched, if both parties request that. To provide more detail, the three ways superannuation is handled in a separation or divorce property settlement are:
Split superannuation: Superannuation is divided between the two parties, not necessarily equally. (Refer to the next section for how a superannuation split is determined.)
Offset super: One party keeps their superannuation, while the other is compensated by receiving a greater share of another asset (e.g., equity in the family home).
Leave super untouched: Sometimes, both parties retain their existing super without alteration. This arrangement usually occurs when the superannuation amounts are relatively equal, or in circumstances where both parties agree to do this.
How is superannuation split in a divorce or separation?
To seek a division of superannuation in a divorce/separation, you or your former partner can go down one of two avenues:
A formal agreement (Consent Orders): If you both are able to agree on how assets are to be split, you can request that the court approve your arrangement to make it legally binding. This means you can potentially avoid attending court.
A court decision: If you and your former partner cannot reach an agreement on how your property is to be divided, then the court can impose a binding property settlement, which may include splitting superannuation.
Note that superannuation is usually not divided 50/50. Instead, the court will assess a range of factors and aims for a just and equitable outcome. These factors include:
The contributions that each party has made during the relationship. This would include financial contributions like income, as well as non-financial contributions, such as raising children and homemaking
The length of the relationship
The future needs of each party (e.g., earning capacity, responsibilities for children, age, and health are all considered)
The value of each party’s superannuation
The value of other assets held by either party.
Superannuation is typically valued using information obtained via a Form 6 Declaration and a Superannuation Information Form, submitted to the fund.
Note that different rules may apply when it comes to defined benefit schemes (common in the public sector), and these may be more complex to value and split. Hence, working with an experienced Property Settlement Lawyer to sort this out can be helpful.
How to protect superannuation in divorce and separation
Whilst your superannuation may be impacted in your divorce or separation, there are some practical steps you can take that may help safeguard your super. These include:
Engaging a lawyer early
A property settlement lawyer can assess your financial position and advocate for a fair outcome for you. The earlier you do this, the better.Negotiating a property settlement that offsets super
If you agree to give your former partner a larger share in another asset, then you may be able to keep your super. This option is particularly useful if you are close to retirement, or you have a substantial amount of super. Of course, this will require some negotiation, and using a property settlement lawyer may assist you both to come to a satisfactory agreement.Keeping thorough records of super contributions
Keeping detailed records of how much you have personally contributed to your super—especially your pre-relationship contributions—as well as what you have contributed to your partner’s super (if applicable) can assist with distinguishing between “marital” property versus your individual property.Understanding fund-specific rules
In some cases, funds may have conditions that affect how and when a super split can be implemented. For this reason, it’s important to take the time to understand your super fund’s policies. It’s also a good idea to seek advice from either a financial advisor or the fund itself so that you make the best move in terms of protecting your super.Create a Prenuptial or Postnuptial Agreement (Binding Financial Agreement)
As part of a Binding Financial Agreement (BFA), you can specify how superannuation and other assets will be split in the event that you and your partner separate. Note that there are a number of conditions that apply in order for a BFA to actually be legally binding, however, if properly executed, a BFA is enforceable under Australian law.
BFAs are obviously best entered into when relations between partners are not strained, so consider a prenuptial agreement at the commencement of your relationship, or a postnuptial agreement if you are already together, but want to define how your assets are to be protected. Note that you can even create an agreement after you separate, however, unless relations remain cordially, this can be more challenging. (Read more about Prenuptial Agreements in Victoria.)
What actually happens in a superannuation split?
If you receive superannuation as part of a divorce property settlement in Australia, you can’t access the funds straightaway—unless you're already eligible to access your super (typically at retirement age or under specific conditions like severe financial hardship or permanent incapacity). Instead:
A transfer occurs, called a superannuation split. This is done via a court order or Binding Financial Agreement.
The superannuation is transferred from one party’s super fund to the other’s superannuation account.
The funds remain preserved in the receiving party's super account until a condition of release is met (e.g., reaching preservation age and retiring).
Example:
You’re 55 and receive $60,000 in superannuation from your ex-partner. The money is held in your super fund. You cannot withdraw it until you're eligible under Australian super laws.
If you're negotiating a property settlement and considering the value of super versus cash or property, this delay in access is an important consideration. The team at Aitken Partners can help you assess your best options and make sure any superannuation entitlements are structured appropriately in your settlement.
What if your superannuation is held overseas?
If your or your partner’s superannuation is held in an overseas fund, things can become more complicated.
Australian family courts have jurisdiction to include overseas superannuation in the property pool, but whether it can be split or enforced depends on the laws of the country where the fund is based.
For instance:
Some countries may not recognise Australian family court orders.
Access and transferability of funds may be restricted.
Currency exchange and tax implications may affect the practicality of division.
In cases involving international assets, including foreign superannuation, it’s important to engage legal counsel with expertise in cross-jurisdictional family law and possibly international tax implications.
Protecting your super: Plan ahead and stay informed
Superannuation can have a huge impact on your long-term financial wellbeing, especially in retirement. If you’re facing a separation or divorce, understanding your rights and responsibilities around superannuation is essential.
Whether you’re hoping to protect what you’ve earned or you seek a fair share of what was built together, taking proactive steps and seeking legal advice early is the best way to ensure your super works for your future—not against it.
Contact Aitken Partners for assistance with Property Settlement and other Family Law related enquiries.