FAQs Superannuation

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This document summarises some of the more commonly asked questions regarding superannuation in family law matters. If your question is not answered on this page or you need further advice on any family law related matter please phone us on 02 6651 8440 or email info@bryantmckinnon.com.au.

Updated February 2026

How is superannuation treated in family law?

Superannuation is treated as property under the Family Law Act. This means it can be divided between parties as part of a property settlement following the breakdown of a marriage or de facto relationship. Although superannuation is property, it is treated separately from other assets because it is held in a superannuation fund and usually cannot be accessed until retirement.

Is superannuation included in the property pool?

Yes. In most cases, each party’s superannuation interests are included in the property pool and taken into account when determining a just and equitable property settlement.

Does superannuation get divided automatically?

No. There is no automatic entitlement to a 50/50 split of superannuation. Whether superannuation is split, and how it is split, depends on the overall property settlement and factors such as:

• the length of the relationship
• each party’s contributions
• each party’s future needs
• the value of superannuation compared to other assets.

What is superannuation splitting?

Superannuation splitting is a process that allows part of one party’s superannuation to be transferred into a superannuation account in the other party’s name. A superannuation split does not convert superannuation into cash. The receiving party generally cannot access the superannuation until they meet a condition of release (such as retirement).

What is the difference between the “one pool” and “two pool” approaches?

One pool approach

Under a one pool approach:

• all assets, liabilities and superannuation are combined into a single pool
• the overall division takes superannuation into account alongside non-superannuation assets
• one party may retain more superannuation while the other receives more non-superannuation assets (such as property or cash).

Two pool approach

Under a two pool approach:

• superannuation is dealt with separately from other assets
• the non-superannuation assets are divided first
• superannuation is then divided between the parties, usually by a specific percentage or amount.

There is no “correct” approach. The most appropriate method depends on the circumstances of each case.

Do superannuation interests need to be valued?

Yes. Before superannuation can be split, its value must usually be determined. Most accumulation funds can be valued by obtaining a current member statement. Defined benefit funds and self-managed superannuation funds often require a formal valuation, which can take time and involve additional costs.

What is procedural fairness and why does it matter?

Procedural fairness requires that superannuation funds are given notice of any proposed superannuation split. Before superannuation splitting orders are finalised:

• proposed orders must be sent to the superannuation fund
• the fund must confirm that the orders can be implemented
• changes may be required to ensure the orders comply with the fund’s rules.

This process can cause frustration or delays, but it is necessary to ensure the orders are valid and enforceable.

Can we agree on how superannuation is divided?

Yes. Parties can agree on superannuation splitting by:

• Consent Orders filed with the Court, or
• a Binding Financial Agreement.

If you reach agreement, the proposed orders or agreement must still comply with superannuation laws and the rules of the relevant superannuation fund.

Do Binding Financial Agreements deal with superannuation?

Yes. A Binding Financial Agreement can include provisions about superannuation. However:

• strict legal requirements apply
• both parties must obtain independent legal advice
• improperly drafted agreements may later be challenged or set aside.

What happens if we can’t agree about superannuation?

If agreement cannot be reached, the Court can make orders about superannuation as part of the property settlement. The Court will consider superannuation alongside other property and decide what outcome is just and equitable in the circumstances.

Can superannuation be split after divorce?

Yes. Superannuation can be split before or after divorce, provided time limits are met. For married couples, property settlement proceedings (including superannuation) must generally be commenced within 12 months of divorce. For de facto couples, proceedings must generally be commenced within two years of separation.

Is superannuation affected by contributions made after separation?

Generally, superannuation accumulated after separation is still included in the property pool. However, how post-separation superannuation contributions are treated may depend on:

• how the contributions were made
• whether they were funded from joint resources
• whether one party continued to support the other.

Can I access my superannuation early because of separation?

No. Separation or divorce does not, by itself, allow early access to superannuation. Superannuation can only be accessed once a condition of release is met, such as retirement, reaching preservation age, or specific hardship circumstances.

Will superannuation splitting affect my retirement?

It may. Superannuation splitting changes the balance held in each party’s superannuation account and can have long-term implications for retirement planning. It is often appropriate to obtain financial advice in addition to legal advice when dealing with significant superannuation interests.

Does tax apply to superannuation splitting?

Generally, no immediate tax is payable at the time of a superannuation split. Tax may become payable later when the superannuation is accessed, depending on the recipient’s age, the type of fund and the components of the superannuation interest.

Is superannuation treated differently for short relationships?

In shorter relationships, superannuation may carry less weight, particularly where:

• balances are relatively small, or
• one party entered the relationship with significantly more superannuation.

However, each case is assessed on its own facts.

What should I do if superannuation is an issue in my property settlement?

Superannuation can be complex and mistakes can be difficult to fix later. It is important to:

• identify all superannuation interests early
• obtain accurate valuations
• understand the practical and long-term consequences of any proposed split
• obtain legal advice before finalising any agreement or orders.

This information is general in nature and does not constitute legal advice. Laws and procedures may change after publication, and some information may not apply to your particular circumstances. Please contact our office if you would like to arrange an appointment to obtain advice specific to your situation.