What You Need to Know About Splitting Superannuation in Divorce
For many separating couples, superannuation is one of the largest (and least understood) parts of their property settlement.
Can your ex claim your super? How do you know if your split is fair? Will you still have enough for retirement?
At Hamilton Thomas Lawyers, we hear these questions every day.
The good news: with the right advice, dividing super doesn’t have to be a battle or a mystery. In fact, it’s one of the most powerful ways to ensure both parties walk away with financial security after separation.
Here’s what you need to know about superannuation splitting during divorce, and how we help our clients approach it with clarity and confidence.
Super Splitting at a Glance
Super splitting can sound complex, but if you keep these key points in mind, you’ll be better prepared to make smart decisions.
Super can be split, but it isn’t automatic.
It forms part of your overall property pool, and whether (and how) it’s divided depends on your unique circumstances.
A 50/50 split is not the rule.
There’s no default percentage. The right split is guided by your relationship history, contributions, and future financial needs.
Splitting super doesn’t mean cash in hand.
Any split portion moves to your ex’s super fund, not their bank account. Likewise, your own super stays preserved until eligible for release.
Super can be a negotiation tool.
With smart legal advice, you can use super strategically, whether you prioritise retirement security or immediate liquidity.
Got the basics? Good, now let’s look closer at how superannuation splitting really works in practice, and the key factors that can shape the outcome in your property settlement.
Is superannuation always split after separation?
Not necessarily.
Superannuation is classified as property under the Family Law Act 1975, which means it can be included in your financial settlement, but how it’s treated depends on your specific situation.
In some cases, each party keeps their own super. In others, a portion of one party’s super is transferred to the other. The decision comes down to:
The length of your relationship
Your respective contributions (financial and non-financial)
Your future needs (such as health and earning capacity)
Whether it is just and equitable to split superannuation in your case
Super splitting myths we often hear
Superannuation splitting is one of the most misunderstood parts of a property settlement. Here are some of the most common myths we hear from clients and the facts behind them.
Myth 1: If I split my super, I lose access to it straight away
Not true.
If your super is split with your former partner, only the agreed portion is transferred from your super fund to theirs.
The transferred amount remains subject to superannuation preservation rules. Your ex can’t simply withdraw that money as cash unless they meet the normal conditions of release (such as reaching retirement age or severe financial hardship).
Likewise, any super you retain stays preserved until you’re eligible to access it.
Myth 2: I’m automatically entitled to half my ex’s super
There is no automatic 50/50 rule in Australian family law.
Superannuation splitting is part of the overall property settlement process and must be assessed in light of each party’s contributions and future needs. In some cases, an even split of super may be fair; in others, it may not.
For example, if one party had a significant pre-relationship super balance or if one party needs more immediate access to cash, a tailored division may be more appropriate.
Myth 3: Super splitting means I’ll receive cash in my bank account
This is one of the biggest misconceptions we encounter.
Superannuation splitting involves transferring part of one person’s super balance to the other person’s super account, not as an immediate cash payout.
The receiving party will still only be able to access those funds under standard super rules.
If you need more liquid funds (for example, to purchase a home), this needs to be negotiated as part of the broader property division, not via the super split itself.
Myth 4: Splitting super is too complex, so it’s better to ignore it
Super splitting can seem daunting, especially if there are defined benefit funds or self-managed super involved.
But ignoring super is rarely in your best interest. For many people, it’s one of the largest assets in the relationship.
With the right legal advice, superannuation can be valued correctly and split in a way that supports your long-term financial wellbeing.
In fact, helping clients make informed decisions about super is one of the ways a skilled divorce lawyer adds real value during settlement negotiations.
How we approach superannuation splitting
No two relationships are the same, and no two super splits should be either. We take a strategic approach based on your goals and what matters most to you.
Here are the key factors we consider with our clients:
Relationship length
Short relationships (under 5 years): Super is often left untouched unless special factors apply (e.g. large contributions made by one party).
Medium relationships (5–10 years): The super accumulated during the relationship may be split to effect a just and equitable settlement.
Long relationships (10+ years): A more comprehensive equalisation of total super may be appropriate, especially where one party sacrificed career time to raise children.
Impact of contributions
Did one party take time off work to support the family? Did one party make larger super contributions? We factor this in.
Retirement planning and needs
A younger party may prioritise access to more cash now, while an older party may want to preserve superannuation for their retirement. We can negotiate accordingly.
How we calculate a fair superannuation split
We start by helping you accurately value all super interests involved, not just what appears on your latest statement. This includes:
Accumulation funds (simple balance-based funds)
Defined benefit funds (which may require actuarial valuation)
Self-managed super funds (SMSFs) (where underlying assets need to be valued)
We then explore two common approaches:
1. Equalising total super balances
All super is added up and split equally, often used in long relationships.
2. Equalising only super accumulated during the relationship
Super accrued prior to the relationship is excluded. This approach is often used for medium-length relationships or where parties want to protect pre-relationship assets.
Can super be used as a negotiation lever?
Absolutely, and smart negotiation is where the right legal advice shines.
For example:
A party planning to buy a home may prefer more cash now and less super.
A party close to retirement may want to protect their super and offer more cash instead.
A business owner may want to retain liquidity and shift value into super for long-term growth.
We help you understand the pros and cons of every option so you can negotiate with confidence.
How the process works in practice
Here’s what happens once you and your former partner agree (or the court orders) a superannuation split:
1. Formalising the split
You can formalise the agreement through:
Consent Orders filed with the court, or
A Binding Financial Agreement prepared by a family lawyer.
2. Super fund approval
The draft orders or agreement are sent to the relevant super fund for review (known as “obtaining procedural fairness” or approval from the super fund). Funds usually take up to 28 working days to respond.
3. Implementing the split
Once the orders are sealed or the agreement signed:
You provide the super fund with a certified copy and a Regulation 72 Notice.
The fund completes the transfer, usually within another 28 days.
Why expert advice matters
Super splitting seems straightforward on paper, but in reality, it’s one of the most technical aspects of a property settlement.
Without advice from an experienced separation lawyer, you could risk:
Accepting an unfair split
Overlooking tax or retirement implications
Getting stuck in procedural delays
At Hamilton Thomas Lawyers, we guide you through the process from start to finish to help you achieve a settlement that protects your future.
If you’re navigating separation or divorce, don’t leave your super to chance. Our team of trusted family lawyers will help you:
Value your entitlements properly
Negotiate a super split that aligns with your goals
Finalise your property settlement efficiently and legally
Contact us today for a confidential chat about your situation. We’re here to help you move forward with clarity and confidence.
