Written by: Rachel Bedingfeld, Family Lawyer [Published: 9/9/26]
Superannuation generally counts as property in a Queensland property settlement, so it can be divided between you and your former partner after separation or divorce. There is no automatic 50/50 split and a superannuation split usually will not put cash in your hand. The mechanics of dividing it are technical and governed by federal law, requiring formal notices and specific drafting. Here is how it works in practice: getting proper information from the fund, choosing between a fixed dollar figure and a percentage, giving the trustee 28 days’ notice, and when you can actually access the money.
How do you find out how much super your ex has?
Superannuation is treated as property under the Family Law Act 1975 (Cth) and is generally included in the property pool following separation. Superannuation splitting for married and de facto couples is governed by Part VIIIB of the Family Law Act 1975, together with the Family Law (Superannuation) Regulations 2025. These are federal laws, so they apply to property settlements in Queensland. Accurate and current information about each superannuation interest should be obtained from each party before deciding how it will be treated in the property settlement.
Gathering superannuation information is a separate step from simply listing suspected assets on a joint balance sheet. A recent statement may provide useful information, but formal information obtained from the trustee may be required to properly identify and value a superannuation interest, particularly where a superannuation split is being considered.
There are two common pathways for discovering and verifying your former partner’s superannuation details:
If you don’t know where their super is held
- The ATO information-sharing pathway: If property settlement proceedings have already commenced and you do not know where your former partner’s superannuation is held, section 90XZJ of the Family Law Act 1975 allows a party to request superannuation information held by the Australian Taxation Office through the Commonwealth Courts Portal. The information can help identify superannuation interests, but the balance reported by the ATO may not be current. Current information should then be obtained from the relevant superannuation fund.
Requesting information from the super fund (Form 6)
- The Form 6 Declaration: Once the relevant fund is known, an eligible person can request information directly from the trustee using the Superannuation Information Request and Form 6 Declaration contained in the Federal Circuit and Family Court’s Superannuation Information Kit. If the request meets the statutory requirements and any applicable fee is paid, the trustee must provide prescribed information about the superannuation interest. That information can assist in determining its value, although some complex interests may require further specialist valuation.
Using these formal mechanisms, together with proper financial disclosure, helps ensure negotiations are based on reliable and current information rather than estimates. Establishing an accurate picture of the superannuation interests is an important step before deciding how they should be treated in a property settlement.
How is super split after a divorce?
Retirement balances are legally recognised as property that can be redistributed following a marital or de facto breakdown. If you are assessing how these funds may be divided, the mechanics require strict adherence to formal processes. You cannot simply instruct your fund to transfer a portion of your balance to a former spouse.
Where you and your former partner have agreed on how superannuation will be divided, the agreement will generally need to be formally documented through:
- Consent Orders made by the Federal Circuit and Family Court of Australia; or
- a superannuation agreement contained in a Binding Financial Agreement (BFA).
If agreement cannot be reached, a party may instead ask the Court to determine the property settlement and make appropriate superannuation splitting orders.
Base amount or percentage: which type of split applies?
Both Consent Orders and a Binding Financial Agreement can provide a legally enforceable mechanism for dealing with superannuation, although different legal requirements apply to each. A superannuation split may be expressed using a fixed dollar figure, known as a ‘base amount’, or as a percentage. However, some types of superannuation interests are classified as ‘percentage-only interests’ and cannot be divided using a base amount. The appropriate method will depend on the particular superannuation interest and the terms of the proposed settlement.
Do you have to notify the super fund? The 28-day rule
Procedural fairness is a critical step when obtaining Consent Orders that will bind a superannuation trustee. Under rule 10.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the trustee must generally be given written notice of the proposed superannuation order at least 28 days before the draft consent order is lodged or the Application for Consent Orders is filed. This gives the trustee an opportunity to review the proposed wording and raise an objection if the order cannot be implemented as drafted.
The Family Law Act 1975 provides that the Court cannot make a superannuation order binding on a trustee unless the trustee has been accorded procedural fairness. Giving the trustee the required notice is therefore an essential part of preparing enforceable superannuation splitting orders.
When Can You Access Split Superannuation?
A common misconception during the asset division process is that a superannuation split provides an immediate cash payment. Generally, it does not. For many accumulation interests, the receiving partner’s entitlement may be transferred into a new superannuation interest with the same fund or rolled over into another complying superannuation fund. Different arrangements may apply to some defined benefit interests, where the split can instead operate against future superannuation payments.
Superannuation received through a split generally remains subject to the usual preservation rules. This means the receiving partner cannot ordinarily withdraw the money simply to purchase property or meet living expenses. Access generally requires the person to satisfy a legal condition of release under superannuation law. Common examples include:
- retiring after reaching the applicable preservation age;
- reaching age 65, regardless of employment status; or
- qualifying under one of the limited early-release provisions, such as severe financial hardship or compassionate grounds.
How is a superannuation interest valued?
If you ask the Court to make a superannuation splitting order, the relevant superannuation interest must first be valued. Even where the parties have agreed on a split, obtaining current valuation information is an important step before formalising the arrangement. Standard accumulation interests are often comparatively straightforward to assess using current information supplied by the trustee.
Defined benefit interests can be more complex because the eventual benefit is calculated using a formula rather than simply reflecting an investment account balance. The family law superannuation legislation contains specific valuation methods for these interests, and specialist actuarial advice may sometimes be required. Self-Managed Superannuation Funds (SMSFs) can also require specialist valuation assistance, particularly where the fund owns property, businesses or other illiquid assets.
These more complex structures should be properly assessed before a superannuation split is finalised.
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Superannuation splitting is a technical but important component of a property settlement. Whether the parties use a Binding Financial Agreement, Consent Orders or require the Court to determine the matter, specific rules govern how superannuation interests are valued, how a split is drafted and when a fund trustee must be notified. A superannuation split does not generally provide immediate access to cash, and the way the receiving partner’s entitlement is implemented will depend on the type of superannuation interest involved. Correctly managing these steps helps ensure that the proposed superannuation split can be implemented effectively and remains legally enforceable.
Our property settlement lawyers on the Sunshine Coast can help identify the information and valuation method that may be required for a particular superannuation interest. Early advice can clarify what evidence needs to be gathered before moving forward.
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Disclaimer: This article provides general information only and does not constitute legal advice. It does not take into account your personal circumstances and should not be relied on as a substitute for professional legal advice. Family law outcomes depend on individual circumstances and the discretion of the court. For advice about your specific situation, please contact Greenhalgh Pickard on (07) 5444 1022.
Greenhalgh Pickard’s Family Law Team
