Super and divorce
Going through a separation or divorce can be a stressful time for you and your family.
The financial decisions you make now could have a big impact on your life in the future, so take the time to consider your options.
Frequently asked questions
Super is often one of the biggest assets you have as a couple, but it’s often overlooked when a relationship breaks down. Any super assets you and your ex-partner hold can be taken into account when you divide your property during a separation or divorce. This applies whether you were married or in a de facto relationship (with someone of the same sex or opposite sex).
It’s important to remember that any super you split isn’t converted to cash so it’s still subject to super laws. This means you won’t generally be able to access it until you’ve met a condition of release, such as retirement.
You don’t have to split your super assets. Instead, you and your ex-partner could agree to use super assets to offset the division of other property.
Most super entitlements can be split. However, there are rules in place to prevent splitting of super if the balance is too small. For example, if your super balance is less than $5,000 it cannot be split. Payments made to a person on the grounds of severe financial hardship or on approved compassionate grounds can’t be split either.
Not all relationship breakdowns end up in the courts. However, if an agreement can’t be reached between you and your expartner, the Family Court of Australia or the Federal Circuit Court of Australia may issue a court order.
Depending on your situation, there are three key ways that super entitlements can be split:
- Superannuation agreement – A formal written agreement can be developed with independent legal guidance. Both you and your ex-partner must sign a certificate that proves independent legal advice was given.
- Consent order – A type of court order that can be lodged with the Family Court where you both agree to the terms.
- Contested order – A type of court order that can be made by the Family Court where an agreement can’t be reached.
If you receive a super payment split through an agreement or court order, you can request to have your super money paid to:
- your CBUS account.
- another super fund.
This money can only be paid to you as cash if you’re eligible for a cash payment (e.g. if you’ve reached retirement age or the money is classified as unrestricted non-preserved).
Family Law can get complicated. A lawyer or mediator can provide you with advice and options for splitting super.
Helpful services
- Federal Circuit and Family Court of Australia - Information on how the law deals with superannuation when couples divide their property after a separation or divorce.
- Australian Taxation Office - Information about how the Visibility of Superannuation Law allows individuals in a current property settlement proceeding to request super information of their current or spouse spouse/de facto partner through the Family Courts.
- Commonwealth Courts Portal - You or your legal representative can apply directly to the Courts for visibility of your current or former spouse/de facto's super information.
- Super and divorce fact sheet - This fact sheet will help you understand how super can be split when a relationship breaks down.
Legal advice
Seeking legal advice is vital during a separation and there are lots of ways you can do this:
- Law Council of Australia - Paid legal services. If you’d like to use a private solicitor you can find a family lawyer through the Bar Associations and Law Societies listed by the Law Council of Australia.
- Community Legal Centres Australia - Free or discounted legal services. If you can’t afford to pay for a private solicitor, you may be able to access free or discounted legal advice through community legal centres listed or legal aid offices.
There are also women’s legal services available in each state who can provide advice over the phone or in person.