Dividing Super in Divorce? Here’s What You Need to Know
Dividing things up after a breakup is never easy, especially when it comes to super.
It’s not like cash, you can withdraw and split. But it still counts as part of the asset pool, and for many couples, it’s one of the biggest assets on the table.
So, how does it work? Can you access your ex’s super? Does it get split 50/50? And what happens if you can’t agree?
Let’s walk through what really happens with super when a relationship ends and why it’s worth getting legal advice before making any big financial decisions.
In Short…
Superannuation does get considered when a couple separates, whether you're married or in a de facto relationship.
It’s treated as part of the overall asset pool, even though you can’t access it like cash, and while it can be split between partners, it’s not always an even 50/50.
Here’s how it generally works:
Both partners’ super balances are identified (or valued, if required)
You can split it by agreement or through a court order
The split amount is rolled into the other person’s super fund, not paid out in cash
It stays preserved until retirement or another release condition is met
Not sure where to start? Keep on reading to find out what’s fair, what to do if you can’t agree and how to make sure you’re not missing out.
Does Super Get Split in a Divorce?
If you’re separating, whether from a marriage or a de facto relationship, superannuation is generally considered part of your shared property under Australia’s Family Law Act.
That means both your super balances are added into the mix with other assets (like your home, savings, or investments), and then the total pool is divided in a way that’s fair.
If you’re going through a separation, it’s important to seek advice from a family lawyer who can help you understand your full financial entitlements (including super) as part of your property settlement.
How the Court Decides on Super Splitting
There’s no fixed rule that says super must be split 50/50. Instead, the Court works out what’s “just and equitable.” That includes looking at things like:
How much super each person brought into the relationship
How much super was built up during the relationship
Who contributed financially and non-financially (e.g. stay-at-home parenting)
How long the relationship lasted
What each person’s future needs are, including income potential and any kids or dependents
If you and your ex can agree on how to split super (and the rest of your assets), great! But if not, the Court can step in and make a decision for you.
It’s also worth noting that super may be treated differently if you're in Western Australia or were never married (i.e., in a de facto relationship), so legal advice is essential.
Valuing Superannuation for Settlement
Before anything gets split, both sides need to figure out how much super is actually on the table.
In most cases, this means:
Obtaining the latest member statement from each super fund
Requesting information using the Superannuation Information Kit from the Federal Circuit and Family Court
For defined benefit funds or self-managed super funds (SMSFs), specialist valuation advice may be needed
It’s important to get this part right. Super might be hidden in multiple accounts, and some funds (especially defined benefit ones) can be tricky to calculate properly.
How Super Is Actually Split
Once you know what you’re working with, there are two main ways to split it:
1. Reaching an Agreement
This is the preferred option for many couples, especially if things are still reasonably amicable.
You can split super by:
Making a Binding Financial Agreement (with independent legal advice for both parties), or
Applying for a Consent Order through the Family Court
Either way, it needs to be formalised properly by a family law expert. A casual “handshake” agreement isn’t enough to make the split enforceable.
Super funds require precise, specific wording in order to split or rollover any funds!
2. Going Through the Courts
If you can’t agree, the Court can issue a Superannuation Splitting Order, which might:
Specify a percentage or fixed amount to be transferred from one person’s fund to the other
Apply a payment flag if there’s a concern that one person might try to access or move the funds early (more on that below)
This process involves more time, paperwork, and legal steps, but sometimes it’s the only way to move forward.
What Is a Super Payment Flag?
A payment flag is a way to “pause” any withdrawals or changes to a super fund until things are sorted legally.
It’s often used when:
One person is nearing retirement or may soon meet a condition of release, and
There’s a risk they’ll take out the money before a final agreement is reached
The flag stays in place until the Court either removes it or a formal flag-lifting agreement is sent to the super fund.
It’s a safety net to help protect both parties, especially when large sums are involved.
What Happens After the Split?
Super isn’t something you can just cash out during a separation, even if a court orders a split.
Instead, the money is usually transferred into a new or existing super account for the receiving partner. This can happen in two ways:
The same super fund opens a new account for the non-member spouse, or
The funds are rolled over into a different super fund that they nominate
In either case, the transferred super stays locked away under the normal rules until retirement or another eligible condition is met.
Common Questions About Super and Separation
“Is Super Always Split in Divorce?”
In most cases, yes, super is treated like any other asset and forms part of the overall divorce property pool. That doesn’t always mean it will be physically divided, though.
Sometimes, one person keeps their full super balance while the other receives a larger share of a different asset, like the family home, investment property, or cash savings.
It’s all about what creates a fair and workable financial outcome when looking at the big picture.
If you're unsure whether your or your ex-partner’s super should be split, it's worth speaking to a family lawyer early on.
“How Long After Divorce Can You Claim Super?”
There’s a 12-month time limit from the date your divorce becomes final to apply for a superannuation splitting order through the court.
If you miss that deadline, you can still apply, but you’ll need the court’s permission to proceed (called "leave of the court").
To get that, you’ll have to show why the delay occurred and how it would result in financial hardship if you couldn’t continue.
In short: if you’re unsure, don’t wait. It’s easier to explore your options while the window is still open.
“Can I Just Access My Ex’s Super?”
No, not without a formal agreement or court order in place.
Superannuation is strictly regulated, and funds can’t release or transfer any portion of someone’s super unless they’ve been served with the correct legal documents.
Even if both parties agree verbally, the fund won’t act unless it’s legally binding.
If you’re thinking about splitting super, it’s best to work through it with legal advice so your agreement is enforceable and so both sides are protected.
“What if my ex has hidden or undisclosed super?”
It’s not uncommon for someone to be unsure about how much super their former partner has or to suspect that not everything is being disclosed.
The good news? You don’t have to take their word for it.
You can apply to the Family Court to access details of your ex-partner’s super using the Superannuation Information Request form, which is part of the court’s Superannuation Information Kit.
This allows you (or your family lawyer) to request accurate information directly from the super fund.
In property settlement proceedings, both parties are legally required to fully and honestly disclose all financial information, including super. Hiding super is not only unethical, but it can also result in serious legal consequences and may affect the final property division.
Protecting Your Future Starts with Good Advice
Super might not feel urgent during a separation, but don’t overlook it.
It’s a huge part of your financial future, especially if you’ve taken time out of the workforce or earned less during the relationship.
At Hamilton Thomas Lawyers, we make sure nothing slips through the cracks during your settlement. Whether you need help reaching an agreement or going through the court process, our family law team is here to guide you with clarity, care, and practical advice.
Talk to us today about your next steps forward.
