Divorce and superannuation: What happens to your super?

Deciding to get divorced is one of the most challenging times of your life, emotionally and financially. According to data from the ABS, approximately 1 in 2 marriages end in divorce, so it’s important to understand how your superannuation is treated to ensure a fair division of assets.

Your superannuation likely comprises a large part of your overall wealth. The value of your current super balance, as well as your future superannuation contributions, needs to be given careful consideration in the event of divorce.

How super is viewed when separating

Superannuation is considered as property under the Family Law Act of 1975, similar to other types of property such as cash, real estate or shares. Where it differs is that it’s held in trust by your superannuation fund.

While your superannuation is yours, you cannot access it either until you retire, or unless you meet a condition of early release. For the purposes of family law, superannuation must be disclosed and considered in a separation or divorce, whether you’re married or in a de-facto, same or different sex relationship.

What happens to the superannuation money in a divorce?

In the event of divorce, superannuation can be divided between the parties. Under the Family Law Act, when it comes to separating partners, superannuation can be:

• Split. This may take place either by court order or binding financial agreement.
• Flagged (put on hold): This can happen if its value can't yet be determined.
• Left untouched: Its value can be offset by other assets.

Regardless of which of the above paths is followed - split, flagged, untouched - the superannuation itself will remain preserved until retirement (that is, it will remain invested with the super environment rather than withdrawn).

How is superannuation split during a divorce?

A popular outcome used to be that in a divorce, he would walk away with the super and she would keep the house. This was a reflection of small super balances, or where women had little or no super due to unpaid care work or part-time employment, or the house was seen as a practical asset for raising children.

This strategy would typically leave the woman without any cashflow for utilities or food etc., resulting in a distressed financial situation, and is no longer standard or recommended.
Now, the Family Court (or lawyers, if a private settlement) aims for a fair division of all the couple’s assets, including both superannuation balances.

Is superannuation split 50 / 50 in the event of divorce?

Superannuation isn’t necessarily split 50 / 50 between both parties in the event of divorce. Instead, each partner’s future needs and financial contributions (both paid, and unpaid) are considered, including:

• Earning capacity
• Time out of the paid workforce for caring duties
• Age and health
• Childcare responsibilities

Superannuation is now regularly split by the Courts so that both parties leave with a fair share. Offsetting super by the value of another asset (e.g.: the family home) only takes place if both parties agree, and a fair and even outcome is agreed.
Most importantly, the Courts encourage you to look ahead and consider retirement outcomes - not just immediate needs. This is particularly important, given that women typically retire with 20-25% less super than men.

Different methods for splitting superannuation after a divorce

There are 3 ways this can take place - let’s take a look at the pros and cons of each.

1. Superannuation Agreement

This is a formal financial agreement made under the Family Law Act, requiring both parties to obtain independent legal advice.

Pros:

• Private and flexible. Tailored to your specific needs, including super splitting and other asset arrangements.
• Avoids court involvement. Keeps the matter out of the court system.
• Legally binding. Once properly executed, it’s enforceable and difficult to overturn.
• Flexible setup. can be made before, during or after marriage/de facto relationship.

Cons:

• Legal advice is mandatory. Both parties must receive and certify they’ve had independent legal advice, which adds to cost.
• Costly to prepare. Especially if there are complex assets or one party disputes terms.
• Can be challenged. If not properly drafted, or if one party didn't disclose all relevant information.

Cost:

• $3,000–$10,000+ depending on complexity and lawyer fees.

Timeframe:

• Typically 2–8 weeks, but longer if negotiations drag out.

2. Consent orders

This is a written agreement that’s filed with the Family Court for approval without needing a court appearance.

Pros:

• Fast and cost-effective. No need to attend court, and cheaper than litigation.
• Legally enforceable. Once approved by the court, orders are binding.
• Super splitting is included. Alongside other property and financial agreements.

Transparency and certainty. Court ensures the agreement is just and equitable.

Cons:

• Court can reject unfair agreements. If not deemed fair, even if both parties agree.
• May still require legal help. While not compulsory, legal advice is recommended.
• Some paperwork involved. Parties must submit detailed financial disclosure.

Cost:

• $1,000–$5,000 with legal assistance for court filing fees. It’s possible to do this yourself, but not always advised.

Timeframe:

• 2–6 weeks for preparation, plus 1–3 weeks for court approval.

3. Court orders (Contested Hearing)

This takes place when the divorcing parties cannot agree, and the court decides how superannuation and other assets are to be split.

Pros:

• Legally binding decision. The court resolves disputes and enforces outcomes.
• Suitable for high-conflict or complex cases. Especially where there’s imbalance of power, control, or undisclosed assets.
• Comprehensive. Includes super and non-super property.

Cons:

• Expensive and time-consuming. Legal fees, court fees, expert reports — costs can escalate quickly.
• Emotionally draining. Court battles are stressful, especially if children are involved.
• Unpredictable outcome. Final decision is in the judge’s hands.
• Delays are common. Backlog in the Family Court system can delay resolution.

Cost:

• $20,000–$100,000+ per party, depending on complexity and duration.
• Filing and hearing fees also apply.

Timeframe:

• 6–24+ months depending on court availability, negotiations, and appeals

Summary of methods for splitting superannuation

Valuing your superannuation during a divorce

The first step in any superannuation split is to understand the full picture of both partners' super. This means using the Superannuation Information Kit provided by the Federal Circuit and Family Court of Australia. It includes:

• A Form 6 Declaration
• A Superannuation Information Request Form

You can send this directly to your partner's superannuation fund, in order to get details relating to balances, contribution history and fund type. The super funds are required to respond within 28 days and may charge a small fee (typically less than $150).

Valuing accumulation vs defined benefit funds

Most superannuation funds are accumulation funds, which are the easiest to value. Like a bank account, the current superannuation balance is used. They will have a statement showing this figure and, overall, their valuation is straightforward.

A small percentage (around 10%) of the superannuation sector’s assets are held by defined benefit schemes. These are mostly found in public sector or corporate legacy funds and are generally closed to new members.
Valuation of these is complicated as they don’t have a visible balance like accumulation accounts. Rather, they promise a future income stream which is usually based on:

• Final salary
• Years of service
• A fixed formula set by the scheme

Often the amount can look low, particularly in comparison to the lump sum amount reflected in an accumulation fund. For example, $40,000 per year for life in a defined benefit scheme is worth far more than $300,000 in an accumulation fund.
Typically, an actuary or specialist valuer is required to calculate a fair value due to the complex formulas the defined benefits scheme uses. As a result, getting a valuation can take weeks or months.
You can’t change whether your partner does or does not have a defined benefit scheme; if they do, you’ll have to be patient when it comes to getting a valuation. What you can do however, is seek expert legal and financial advice; these legacy funds often hide significant wealth behind complex formulas, and getting their value right is essential for an equitable split.

How to protect your super

Not planning on separating but want to know how you can protect yourself and your superannuation, just in case?

• There are a few simple steps you can take to protect your super in the event of divorce.
• Keep detailed records of your superannuation contributions
• Consider binding financial agreements
• Seek legal and financial advice, independent of your partner

Tax implications of splitting your super after divorce

Like earnings from investment or pension payment, income generated within your super is taxed at concessional rates. However, if a split causes your super balance to exceed certain limits, different tax rules may kick in.

Keep in mind the transfer balance cap, which limits how much you can transfer into the tax-free retirement phase pension account. As of July 2025, this cap is set at $1.7million.

Should a super split cause your total retirement phase income stream to exceed this cap, then any excess amount could be taxed at higher rates, which would impact your super’s overall tax advantages.

There are also other potential complications; lump sums and income streams are taxed differently; again, exceeding the cap could lead to additional taxes or restrictions. Understanding these rules - and also considering seeking professional advice - can help you plan your super splits wisely to both maximise your tax benefits, while remaining compliant with current regulations.

Frequently asked questions

• How much super is my ex-wife entitled to?

  How your super is split will depend on the court order as determined by the court, or the super agreement you decide on privately.

• Am I entitled to half my partner’s super in a divorce?

  You may not necessarily be entitled to half your partner’s super in a divorce, this will be determined by the court order or private super agreement.

• Is superannuation safe from divorce?

  Superannuation money is counted as property like any other financial asset in the event of a divorce, and is divided between parties. The way the super money is divided depends on your individual circumstances.

Written by

Pascale Helyar-Moray

Superannuation and wealth expert

Pascale Helyar-Moray OAM is a multi award-winning entrepreneur who uses innovation as a means to solve big-picture problems. She's the host of the Dare To Be Rich podcast, the author of Rich Woman Poor Woman and the founder of Grow My Money. See full bio

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Pascale has written 7 Finder guides across topics including:

• Superannuation
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