The Impact of Superannuation on Property Settlements
01.07.24Published 1 July 2024 | Written by Family Law Partner Reece Ramsden | Last reviewed 7 September 2026
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Under Australia’s Family Law Act 1975, superannuation is treated as property and must be included in the asset pool when a marriage or de facto relationship ends. It’s split by agreement or court order, using a base amount or percentage-based method. Since 10 June 2025, courts must also weigh factors like family violence’s economic impact in reaching a just and equitable split.
SUPERANNUATION IN PROPERTY SETTLEMENTS
Superannuation is a critical component of financial planning, designed to provide individuals with an income during retirement.
In Australia, the superannuation system mandates that employers contribute a portion of an employee’s salary into a superannuation fund. Over time, these contributions, along with any personal contributions and investment returns, accumulate to form a substantial financial resource for retirement.
In the context of property settlements during a relationship breakdown, superannuation is treated as a type of property. This means that when a couple decides to separate or divorce, their superannuation entitlements are subject to division, just like other assets such as the family home, investments, and savings.
The inclusion of superannuation in the asset pool for property settlements is crucial, given its significant value and the role it plays in securing financial stability during retirement.
The legal framework governing the division of superannuation in Australia is primarily outlined in the Family Law Act 1975. This legislation provides the basis for how superannuation is treated during property settlements, ensuring that both parties receive a fair share.
Find out more about our property settlement services.
RECENT CHANGES TO SUPERANNUATION AND PROPERTY SETTLEMENT LAW (2025 UPDATE)
Two changes commenced on 10 June 2025 and are worth understanding before you rely on older information, including anything you may have read prior to this date.
The Family Law Amendment Act 2024. This reform wrote a set of previously discretionary, case-law-derived factors directly into the Family Law Act itself. Courts must now expressly consider the economic impact of family violence (including how it may have limited a party’s ability to work or contribute financially during the relationship), the wastage of assets, responsibility for debts, and the housing needs of children when deciding what division of property, including superannuation, is just and equitable. In practice, this means the court’s reasoning for a super split now has to visibly address these factors, not just contributions and future needs in the general sense.
The Family Law (Superannuation) Regulations 2025. These regulations, made under the same reform package, updated the technical machinery behind super splitting:
- The thresholds for “unsplittable” small superannuation interests increased, from $2,000 to $4,000 a year for pensions and annuities, and from $5,000 to $10,000 for other interests, reflecting changes in the cost of living since the original 2001 figures.
- Valuation methods were updated and expanded to cover newer superannuation products that didn’t exist when the original regulations were written.
- What were previously called “regulation 72 notices” (notices to superannuation fund trustees) are now “regulation 144 notices,” and require additional information about legal representation or support workers.
Neither change alters the basic structure of super splitting described below (a superannuation agreement or a court order, using a base amount or percentage method), but they do affect valuation, small accounts, and how the court frames a just and equitable outcome. Read our full breakdown of the family violence and financial disclosure changes.
HOW SUPERANNUATION IS TREATED IN PROPERTY SETTLEMENTS
Superannuation is considered a unique asset in property settlements due to its nature and the regulations governing it. Unlike tangible assets like real estate or personal property, superannuation is held in trust and is subject to specific preservation laws, meaning it cannot be accessed until the holder reaches a certain age or meets certain conditions.
Under the Family Law Act 1975, superannuation is classified as property and must be included in the total asset pool when dividing assets between separating parties. However, because superannuation is a financial resource meant for retirement, its treatment in property settlements requires special consideration. The courts aim to ensure that the division of superannuation is just and equitable, reflecting each party’s contributions to the relationship and future needs, now expressly informed by the statutory factors outlined above.
One of the key distinctions in treating superannuation as property is its valuation. Superannuation funds can vary significantly in value, depending on factors such as the length of employment, salary, and investment performance. Therefore, accurately valuing superannuation is a crucial step in the property settlement process. This often involves obtaining a valuation from the superannuation fund trustee or an independent financial expert, using the methods set out in the Family Law (Superannuation) Regulations.
Moreover, the way superannuation is divided can differ from other assets. It can be split either by a court order or through a superannuation agreement. Properly addressing its division ensures that both parties’ retirement needs are considered, contributing to a fair and balanced settlement outcome.
Read the Attorney General’s Guide on Superannuation Splitting.
HOW IS SUPERANNUATION DIVIDED?
Superannuation can be divided between separated couples, whether they were married or in a de facto relationship. This can be done through a superannuation
SUPERANNUATION AGREEMENT
A formal, written financial agreement on how superannuation is to be split. This agreement must meet the strict requirements set out in the Family Law Act, including notice to the superannuation fund trustee and independent legal advice for both parties.
COURT ORDERS
If an agreement cannot be reached, the court can order a superannuation split, including by consent orders where both parties agree on the outcome and simply need it formalised. Where they can’t agree, the court’s primary consideration is ensuring that the split is just and equitable for both parties, weighed against the statutory factors described above.
METHODS OF DIVIDING SUPERANNUATION
Base Amount Division. Under base amount division, a specified amount of super is transferred from one party’s super fund to the other party’s fund. This method is generally used when the superannuation is still in the growth phase and has not yet reached the payment phase.
For example, if a couple decides to divide superannuation by a base amount, they might agree that $50,000 should be transferred from one party’s super fund to the other party’s super fund. This approach is straightforward and allows both parties to have clarity on the exact amount being transferred.
Percentage-Based Division. In a percentage-based division, a specified percentage of the superannuation balance is transferred from one party’s fund to the other’s. This method is often preferred when the superannuation is in the payment phase or when the balance is likely to fluctuate due to market conditions.
For instance, a couple might agree that one party will receive 40% of the other party’s superannuation balance. If the balance changes over time, the percentage division ensures that both parties share in any growth or decline of the superannuation fund.
SECURING YOUR FAMILY’S FINANCIAL FUTURES
Superannuation in property settlements is a complex yet critical part of ensuring fair and equitable outcomes during a relationship breakdown.
It represents a significant asset for many Australians, and its proper handling, especially in light of the 2025 legal changes outlined above, can profoundly impact both parties’ financial futures.
From understanding its unique legal treatment to accurately valuing superannuation and addressing potential challenges, each step requires careful consideration and professional guidance.
If you’re facing the complexities of a property settlement and need expert guidance on dividing superannuation, Ramsden Lawyers is here to help. Our experienced family law team can provide the legal advice and support you need to navigate this challenging process.
Contact us today to schedule a consultation and ensure your superannuation and other assets are handled with the utmost care and professionalism.
FREQUENTLY ASKED QUESTIONS
Is superannuation considered an asset when you separate or divorce in Australia?
Yes. Under the Family Law Act 1975, superannuation is legally treated as property, not a personal entitlement. It must be disclosed and included in the asset pool alongside real estate, savings and investments when a marriage or de facto relationship ends, even though it usually can’t be accessed until retirement.
How is superannuation split between separating couples?
Superannuation can be split either by a formal superannuation agreement (a written agreement meeting Family Law Act requirements, with independent legal advice for both parties and notice to the fund trustee) or by a court order if the parties can’t agree. The fund trustee then implements the split.
What's the difference between a base amount split and a percentage split?
A base amount split transfers a fixed dollar figure (for example, $50,000) from one party’s super to the other’s, and suits accounts still in the growth phase. A percentage split transfers an agreed proportion (for example, 40%) of the balance and suits accounts in the payment phase or balances likely to fluctuate.
Do both parties need to go to court to split superannuation?
No. Most couples split superannuation by agreement, using a superannuation agreement or consent orders filed with the court, without a defended hearing. Court orders are only needed where the parties can’t reach agreement and ask a judge to decide a just and equitable split.
How is superannuation valued in a property settlement?
Simple accumulation accounts are usually valued from the fund’s latest statement. Defined benefit and self-managed super funds often need a formal valuation using the method set out in the Family Law (Superannuation) Regulations, sometimes prepared by the fund trustee or an independent actuary, before a split can be agreed or ordered.
Can you access your ex-partner's superannuation as cash?
No. A super split moves value between super accounts, not into a bank account. The receiving party’s share stays in the superannuation system and remains subject to the normal preservation rules, meaning it generally can’t be withdrawn until they reach preservation age and retire.
Has the law on superannuation splitting changed recently?
Yes. The Family Law (Superannuation) Regulations 2025 raised the thresholds for unsplittable small super interests, updated valuation methods for newer super products, and introduced new fund notice requirements. Separately, family law reforms effective 10 June 2025 require courts to expressly weigh factors such as family violence and children’s housing needs in property settlements.
Does superannuation splitting apply to de facto couples, or only married couples?
It applies to both. The same superannuation splitting rules under the Family Law Act apply whether the relationship was a marriage or a de facto relationship, including same-sex de facto couples, provided the usual eligibility criteria for a family law property settlement are met.
