Under the Family Law Act 1975, superannuation is treated as property even although it is not “technically” property. Superannuation is available to be divided between parties in a property settlement under Part VIII B of that Act, along with real estate, shares, cars, bank accounts and so on.



Superannuation Splitting legislation permits superannuation to be divided between parties at the end of their relationship.


Superannuation can be divided or “split” through a Court Order or through entering into a Superannuation Agreement.


The mechanics for effecting a superannuation split are strict. Once the terms of the Order or Agreement have been finalised, it must be given to the Superannuation Fund for pre-approval. Once Orders are made/the Agreement concluded, that formal paperwork must be served on the Fund.


It is then for the non-member spouse to decide whether he/she wants to open up a stand-alone account in the existing Fund or have the split money sent to their own existing Fund or a new Fund of their choosing.


Subject to that decision, Funds to the value of the split then transferred to the non-member’s nominated Superannuation Fund.


Un-splittable Superannuation

Certain superannuation are not splittable and these include:

  • If the balance is less than $5,000;
  • Certain pension accounts.



Section 90MZB of the Family Law Act regulates the information Superannuation Funds require to provide to parties in Family Law property negotiations. This information can be sourced by completing a Form 6 Application. Upon receipt of the Form 6 Application, the Superannuation Fund must:

  1. Provide requested information about the superannuation balance to the member or non-member spouse making the request;
  2. If the request comes from a non-member spouse, refrain from advising the member that the request has been made; and
  3. Not disclose the superannuation member’s address to the other spouse.



Where parties have a self-managed super fund which they want to split, there are very strict compliance requirements that need to be adhered to and complex matters considered. The issues include: who, if either party wishes to continue membership of the Fund; amendments to the Trustee Deed; Capital Gains Tax; valuation of self-managed superannuation assets; and an understanding of the relevant Superannuation Regulations.