By Reece Ramsden, Accredited Family Law Specialist, and Jakoaba Smith, Law Clerk | Last reviewed: June 2026
Understanding the “splitting headache” in property settlements
Superannuation is often one of the most significant assets in a family law property settlement. However, many separating couples are unsure whether superannuation can be divided, how it is valued, and whether a superannuation splitting order will apply in their circumstances.
Under Australian family law, superannuation forms part of the overall property pool and may be divided between parties following separation or divorce. Whether superannuation is split, and how that occurs, depends on a range of factors, including the type of superannuation fund involved and the circumstances of the parties.
In this article, we explain how superannuation is treated in family law property settlements, how different superannuation interests are valued, and the options available for superannuation splitting.
Key Takeaways
- Superannuation forms part of the property pool in family law matters
- Superannuation is not automatically split after separation
- Different valuation methods apply depending on the type of superannuation fund
- Superannuation splitting can occur through consent orders, court orders or financial agreements
- A defined benefit scheme often requires specialist valuation before a split can occur.
The Courts’ Approach
The Court aims to achieve a just and equitable property division for both parties in settlement proceedings, which includes the splitting of superannuation (‘super’). When dividing or splitting parties’ super, it is treated the same as any other property: your spouse or ex-spouse may be entitled to a share of your super (and vice versa), whether that is achieved by a court order, or by agreement. Super can remain untouched in some circumstances entirely. However, the way in which super is dealt with by either of these means depends on the type of funds the parties have.
How Is Superannuation Valued?
When undergoing property settlement proceedings, it is a requirement for parties to provide what is called full and frank disclosure. This will usually include specific time periods’ worth of financial documents, including superannuation statements, bank statements, tax returns, and any other financial resources and property information. This will be relevant to determining the exact size and amount of an asset pool, including superannuation, so it can be divided in a just and equitable manner.
If full and frank disclosure is not provided, a document called a Form 6 can be sent directly to the trustee of the superfund, which is an application to the Fund directly to release information, including the balance/value to the other spouse.
However, usually disclosure is received, and the funds can be valued depending on the type of fund, as follows:
Defined Benefits Schemes
Defined Benefit Schemes include Superfunds such as MilitarySuper, Public Sector Superannuation, Commonwealth Superannuation Scheme, Defence Force Retirement and Death Benefits Scheme. These benefits are often used for Commonwealth or defence employees, as retirement benefits are calculated based on your years of service. A specific formula is used to calculate your entitlements upon retirement, considering your years worked and income. It generally depends on the superfund whether you can make further contributions yourself.
These types of benefits cannot be taken at face value. They should be valued by a qualified superannuation valuer before it can be split. We must know the exact value before any splitting order can be made. This is because the superannuation may be worth more or less depending on the exact formula used by the Superfund to determine the retirement benefit you will receive in the future. This depends on individual circumstances, including employer contribution amount, length of employment, and final average salary predicted for when you retire. Factors that are difficult to predict and therefore need to be valued by a professional.
Accumulation Funds
This is generally the most common and standard superannuation fund used by those who hold eligible employment, as your employer must contribute a percentage of your salary into these funds by law (known as the ‘Super Guarantee’). You can make additional contributions to your super account at your own discretion with these funds. These funds are then invested with the aim of having growth, or accumulation, over time for a better retirement outcome. The balance that remains when you retire is what you receive.
Your superannuation with these kinds of funds can be taken at face value, as there is no predicted benefit, or any other formula that is used to determine your entitlements. The Fund balance displayed is the value of the fund and can be easily split accordingly.
Self-Managed Superfunds
These types of funds are similar to accumulation funds; instead of being managed by an external retail or industry super fund, they are managed by the person who wants to receive the benefit upon retirement. This means that person (known as the Trustee) manages the investments, compliance and tax obligations related to the fund. These funds can only be started for the purpose of securing a retirement benefit. This can include money and other assets, such as property.
Depending on the type of assets held within the trust/fund, these can usually be taken at face value as well. However, if including property, shares, or another alternative financial resource that is not easily divisible, they may also need to be valued by a forensic accountant, actuary, or valuer before splitting. If real property, such as a house or apartment, is held by the fund/trust, this will likely need to be liquidated (i.e., sold) before it can be distributed.
How Can Superannuation Be Split?
After valuation has taken place among the other pre-court procedures (such as disclosure), it will then be time for either consent orders or a financial agreement to be drafted (if you are not going to a Final Hearing). This will include superannuation splitting terms, if the parties wish. Usually, lawyers will run the proposed Orders or agreement past an accountant to determine what the tax implications are, or in the case of self-managed superfunds, to ensure they will not be breaching their legal obligations as Trustee of the fund before submitting to the Court. In the case of a binding financial agreement, this will occur before the parties sign.
Consent Order or Court Orders
Consent Orders are a type of written agreement drawn up by either your or your ex-partner’s solicitors (or both) and submitted to the Court for consideration. The Court’s main aim is to achieve what they think is a ‘just and equitable’ division of property. There is no set equation they use to determine this, but they draw inferences from the surrounding circumstances to determine if they think the proposed orders reflect the parties’ contributions both during and after the relationship and each of your “future needs”.
When Orders are made by consent, that is, each of the parties agrees on the Orders to be submitted by the court, superannuation can be divided however you agree, but it is ultimately up to the court to decide if they think it is fair to divide the property pool, including superannuation, in that way.
If a matter progresses to Final Hearing, the Court will make Orders themselves, instead of the parties drafting them independently. These are automatically enforceable and must be complied with.
Financial Agreement
A Financial Agreement or BFA is another type of written agreement that can be drafted by either side’s solicitors. This is basically the same process as consent orders, however is not submitted to the Court, and therefore does not have to meet the Court’s strict ‘just and equitable’ property division standard. This is because it is a private contract. Once both parties and their representation are happy with the agreement, and it meets the strict BFA compliance rules, it is signed and executed without Court intervention.
With this option, there is more flexibility for parties to include any agreement relating to the split of superannuation without having to be concerned about the Court’s opinion. It is typically binding on both parties, and if one person breaches the agreement, you can file an application to the Family Court to enforce it.
Compliance of Orders or Agreement
Once the orders have been made, or the agreement has been signed, the agreement or Orders will be served to the Trustee of the Superfund, and the specific fund will usually have a process for how it will comply with the superannuation split.
PLEASE NOTE prior to having the orders made or the agreement signed, it is recommended that you give the trustee of the fund procedural fairness and notice of the split.
Procedural fairness involves ensuring the trustee is given proper notice of the super split request, access to relevant information, and a reasonable opportunity to consider the proposal and respond before making a decision. In practice, this is often done by providing a copy of the proposed super split, explaining the purpose of the request, and allowing the trustee to assess whether approving the super split is consistent with their duties and the interests of beneficiaries.
Once the trustee confirms they don’t object, then it is recommended to sign and submit the orders or agreement.
RAMSDEN FAMILY LAW – HOW WE CAN HELP
If you are separating and have questions about superannuation splitting, property settlements, or financial agreements, obtaining legal advice early can help you understand your legal entitlements and avoid costly mistakes.
At Ramsden Family Law, our experienced family lawyers regularly assist clients with superannuation splitting orders, property settlements, binding financial agreements, and complex financial matters involving defined benefit schemes and self-managed superannuation funds.
Whether you are negotiating an agreement with your former partner or preparing for Court proceedings, we can provide practical advice tailored to your individual circumstances.
Contact Ramsden Family Law today to arrange your free 30-minute initial consultation with one of our experienced family lawyers.
The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
Frequently Asked Questions About Superannuation Splitting
IS SUPERANNUATION AUTOMATICALLY SPLIT AFTER SEPARATION?
No. In Australia superannuation in family law proceedings is considered part of the property pool, but it is not automatically divided. Whether a divide in superannuation occurs depends on the circumstances of the parties and any agreement reached or orders that are made by the Court.
HOW IS SUPERANNUATION VALUED IN A PROPERTY SETTLEMENT?
It will depend in the type of fund. Accumulation funds can generally be valued using account balances, while defined benefit interests often require specialist valuation.
CAN SUPERANNUATION BE EXCLUDED FROM A PROPERTY SETTLEMENT?
Yes, in some circumstances, it can be excluded from a property settlement. The parties may come to an agreement not to split superannuation if an alternative division of assets is considered appropriate.
