Superannuation and Separation

Dealing with Superannuation

Superannuation is a significant part of long-term wealth planning for most Australian families. As a compulsory saving scheme for the majority of workers, it plays a key role in financial security—especially during retirement.

Under the Family Law Act, superannuation is treated as property and can be divided between separating couples, regardless of whether they are:

• Married
• In a de facto relationship
• In a same-sex or opposite-sex partnership

This means superannuation can be split just like any other asset during separation.

Ways to Divide Superannuation

There are three primary legal pathways to divide superannuation:

1. Superannuation Agreements (a type of Binding Financial Agreement)
2. Court Orders
3. Consent Orders

Superannuation Splitting via Binding Financial Agreements

A Superannuation Splitting Agreement is a written legal agreement that can be included in a Binding Financial Agreement (BFA) under the Family Law Act. It allows couples to decide how their superannuation entitlements will be divided.

This type of agreement:

• Can be made before, during, or after a relationship
• Can include provisions to “flag” an interest in superannuation (delaying the division until a later date)
• Offers an alternative to Family Court proceedings

Superannuation Agreements were designed to give couples more control and flexibility in managing their financial separation, reducing the need for court intervention.

However, if an agreement cannot be reached, the Family Court can step in to make a binding decision.

Requirements for a Valid Superannuation Agreement

For a Superannuation Agreement to be legally binding under the Family Law Act, it must:

• Be signed by both parties, and
• Include a certificate of legal advice, confirming that each party received independent legal advice before signing

Need Assistance?

At Happily Divorced, we can help you draft or review Superannuation Agreements as part of your financial settlement. Our goal is to help you resolve matters efficiently, with dignity, and in a way that protects your financial future.

Phone: 0415 807 583
Email: hello@happilydivorced.com.au
Website: happilydivorced.com.au