Super-Size Me: Superannuation Splitting and Family Law

First published 10 March 2023, updated 27 November 2025 and June 2026

Introduction

Most property settlements under the Family Law Act 1975 (Cth) (FLA) involve a consideration of superannuation. Even the smallest property pools will usually include some superannuation. On 1 July 2025 the Superannuation Guarantee (SG) contributions increased to 12% of earnings. This is now the minimum percentage that an employer must contribute to each employee’s superannuation fund. Another change from 1 July 2022 was that even the lowest paid employees must have superannuation contributions paid by their employers. Previously the SG scheme did not apply to employees earning less than $450 per month. Superannuation will therefore continue to be an important aspect of property settlement and will often be a significant part of the property pool. It cannot be ignored.

Superannuation-splitting arrangements for Western Australian de facto relationships commenced on 28 September 2022. They are in a new Pt VIIIC of the FLA. Most of the provisions are identical, or near identical with just minor language or jurisdictional differences. The most important thing to watch is that the section and Part references may be different. For example, the definition section is s 90YD not s 90XD and a splitting order is under s 90YY not s 90XT.

This paper covers:

1. Accessing superannuation details – recent reforms
2. Practical and financial consequences of splitting super – is there a better way?
3. Checking the fund rules – what to look for?
4. Joining the trustee to family law court proceedings
5. Managing super splitting involving multiple member funds
6. Specific issues concerning SMSFs, defined benefit schemes, and military pensions
7. What if the implementation of the split is delayed?
8. Recent cases

1. Accessing superannuation details – recent reforms

Before the value of superannuation can be determined under s 90XT(2)(b) FLA, the superannuation must be identified. Superannuation will usually be in a retail fund, an industry fund or a self-managed superannuation fund (SMSF). Although a party to a property settlement or maintenance proceeding must disclose their superannuation interests (r 6.06(3)(b), (e) and r 6.06(8)(c) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (the Rules)) they may either refuse to disclose any or all of their superannuation.

To address the problems of non-disclosure and under-disclosure of superannuation and to reduce the time, cost and complexity of obtaining accurate information from the other party’s superannuation fund, through the Superannuation Information Form process, the FLA was amended to enable a party to request a registry of a court to request information about a party’s superannuation entitlements from the Australian Taxation Office (ATO). The Treasury Laws Amendment (2021 Measures No 6) Act 2021 (Cth) was passed on 2 September 2021 and the new process commenced on 1 April 2022.

The ATO process is in addition to the process whereby a request can be made to the trustee of a superannuation fund using a Superannuation Information Form.

Request for information made through the court registry

The request must be made in the approved Superannuation Information Request form online using the Commonwealth Courts Portal. A party to a current property settlement proceeding, or their legal representative, can make a request.

To assist the ATO to locate their current or former spouse/de facto’s superannuation information, the request must include, at a minimum, the following information:

• full name including former names
• any known addresses
• date of birth in full

Their telephone number and/or email address, if known, should also be included. The more identifying information provided, the greater the chance of a successful match by the ATO.

The court will verify there are ongoing permitted family law proceedings between the parties before the request is submitted to the ATO.

A response to the request should be available on the Commonwealth Courts Portal within 7 days. The response is visible to all parties and their legal representatives.

The response to the request will be a letter from the ATO to the court advising one of the following:

• individual located and superannuation found, or
• individual located and no superannuation found, or
• individual unable to be located.

Where superannuation information belongs to an individual of an APRA fund (which includes most funds including industry, retail, corporate and small APRA funds), self managed superannuation funds (SMSFs) and/or ATO-held monies, the ATO may provide the following information:

• Superannuation fund name
• Australian Business Number (ABN) of the superannuation fund
• Unique Superannuation Identifier (USI) of the superannuation fund
• Last reported balance
• Date of last reported balance
• Account phase

Where the information is blank or listed as “not yet reported” this probably means the ATO does not have the information. It does not necessarily mean that there is no superannuation to locate.

A problem is that the superannuation information provided by the ATO may not reflect the up-to-date account balance and should not be solely relied on. A request to the fund trustee may also be required and the process for this is outlined below.

The superannuation information received should be used solely for the purposes of the property settlement proceedings and must not be disclosed to anyone not part of that proceeding (s 355-65(3) in Sch 1 to the Taxation Administration Act 1953 (Cth) (TAA) and s 90XZJ(2) or 90YZY(2) FLA). Making a record of, or on-disclosing, the superannuation information may be an offence unless it is for the purpose of the relevant proceedings (see ss 355-155 and 355-175 in Sch 1 to the TAA).

Applying for information from a fund trustee

The other process is not court based. The Superannuation Information Process can only be used if the non-member knows the name of the trustee of the fund, so if this is not known and the member refuses to disclose it, the court-based ATO process needs to be used first. The benefits of the non-court-based process, which involves the information being requested directly from the trustee, are:

• The fund can provide more up-to-date information as to value
• The process can be used to obtain information from earlier dates such as the dates of separation and cohabitation
• The fund will provide more information about the nature of the entitlements
• The process can be used where there are no proceedings before the court, for example, by parties negotiating consent orders or by parties entering into a financial agreement in anticipation of, during or after a de facto relationship or marriage

A person applying for information from the trustee must make a declaration that the information is required for either or both of the following purposes:

• to assist the applicant to properly negotiate a superannuation agreement
• to assist the applicant in the operation of Pt VIIIB FLA

The declaration must be in the prescribed form (Form 6 declaration and the Superannuation Information Form) and accompanied by the “reasonable fee” required by the trustee. Unless the “eligible person” directs in the Superannuation Information Form that the information be provided to their lawyer, the information will be provided to the eligible person.

The information that a trustee may be required to provide varies. There are separate lists of requirements for different types of superannuation interests. Under Regs 103 to 137 of the Family Law Superannuation Regulations 2025 (FLS Regulations), the following categories of superannuation interest are identified:

• accumulation interests
• defined benefit fund (DBF) interests
• percentage-only interests
• certain innovative interests
• SMSF interests, and
• small superannuation accounts interests

These are not an accumulation account with a low value, which is a common error made in completing the Application for Consent Orders. They are a special type of fund under the Small Superannuation Accounts Act 1995 (Cth).

Within these categories, the information to be provided differs depending on whether the superannuation interest is in the growth or payment phase.

The trustee must not provide the non-member spouse with the address of the member (s 90XZB(5) FLA). The trustee also must not inform the member that the non-member spouse has requested information about the superannuation interest (s 90XZB(6) FLA). Breach of either of these prohibitions carries a criminal penalty of 50 penalty units for an individual and 250 penalty units for a corporation.

Failure to provide information when required to do so makes the trustee liable for a penalty of 50 penalty units for an individual or 250 penalty units for a corporation.

The information must be provided within a “reasonable time” (reg 140(1)(b) FLS Regulations).

2. Practical and financial consequences of splitting super – is there a better way?

Is superannuation splitting the best option? The answer to this question will vary from case to case and will depend upon the client, their objectives and the property and superannuation of the parties. Matters to consider include:

1. The type of superannuation being split, particularly if one or both parties have an interest in a DBF or a SMSF
2. Whether either or both parties have met a condition of release eg:
   • Has reached their preservation age and retired
   • Has reached their preservation age and begun a transition to retirement income stream
   • Ceased an employment arrangement on or after the age of 60
   • Is 65 years old, even if they haven’t retired
   • Has retired
3. If the client is still working:
   • For how long?
   • How much superannuation do they have?
   • Are contributions being made to their superannuation? Possibly not if self-employed or unemployed.
   • Are they close to or over the transfer balance cap?
   • How stable is their housing?
4. The client’s objectives eg. housing, retirement income.
5. If the superannuation entitlements are in a SMSF:
   • Is the fund compliant?
   • Are the assets lumpy and what are the liquidation costs?
   • For example: freehold for business which will be retained by one of the parties; investment in an undiversified share portfolio; an investment which one party cannot or is not prepared to manage
6. If the fund is a SMSF, do we or both parties want to operate a SMSF after they have finalised their property settlement?
7. Can the non-member’s entitlements be rolled out immediately?
8. Is a flagging order under s 90XU more appropriate? These are not used as frequently as the drafters of the legislation envisaged. In part this is because most funds varied their scheme documents to enable splits to occur before the member meets a condition of release but it is also because flagging is often overlooked as an option.

Whilst the above list may seem overly technical it is useful to remember that superannuation is treated as property for the purposes of the paragraph (ca) definition of matrimonial cause and the paragraph (ca) definition of de facto financial cause (s 90XC(1) and (2)). Therefore, it is imperative, even though often scant attention is given to the assessment of contributions, s 79(5)/s 90SM(5) factors and whether a superannuation split is just and equitable.

A different approach can be shaped by looking at the nature, form, characteristics and value of the superannuation, relating this to the needs of the client. Rather than simply seeking that all superannuation be totalled and split 50/50 or all superannuation accrued during the relationship be split 50/50, a more nuanced approach may be in the best interests of the client.

3. Checking the fund rules – what to look for?

The first thing to look for when checking the rules is to make sure you are looking at the correct document. Depending on the type of fund this could be:

• A trust deed
• Legislation setting up the fund eg. Emergency Services Superannuation Act 1986 (Vic)
• Legislation which impacts the fund eg. Superannuation Industry (Supervision) Act 1993 (Cth) (SIS Act) and Superannuation Industry (Supervision) Regulations 1994 (Cth) (SIS Regs)
• Legislation or regulations which impact the fund eg. Family Law (Superannuation) (Methods & Factors for valuing particular superannuation interests) Approval 2025
• Family Law (Superannuation) Regulations (2025)

It is more important to check the fund rules, or preferably have an expert do it on behalf of your client, when the superannuation interest is a SMSF or a defined benefit interest.

A SMSF trust deed must contain certain details such as:

• Names of the members and individual trustees (or the names of the fund’s directors if the fund has been set up with a corporate trustee structure)
• Objective of the SMSF. All superannuation funds (including SMSFs) must be set up for the sole purpose of providing retirement benefits to fund members (or to their dependants when they die). (s 62 SIS Act).
• Trustees or directors must document and implement the fund’s investment strategy. The trust deed should outline the specific types of investments that the trustees/directors can make and the assets of the SMSF must reflect the investment powers in the deed. eg. can the fund borrow?
• Rules that outline how the fund will be administered, how a person can join the fund, how and when member benefits will be paid (as a lump sum or pension) and the circumstances in which the fund will be wound up.

Section 104A of the SIS Act requires that trustees and directors of trustees (if appointed after 30 June 2007), sign a declaration in the approved form that they understand their duties as trustee of a SMSF and ensure that other trustees do so also. This form must be retained so long as it is relevant, and in any case for at least 10 years. A breach of this section is a strict liability offence with a penalty of 10 penalty units or $3,300 as of June 2026. Similarly, member reports must be kept for so long as they are relevant and for at least 10 years (s 105 SIS Act).

In the case of SMSF trust deeds it is also important to check that the deed:

• was prepared by someone competent to prepare it;
• was signed and dated by all the trustees;
• was properly executed according to the state or territory law in which the SMSF was established;
• has been regularly reviewed and updated as necessary.

The last point is the trickiest. As family lawyers we don’t keep up-to-date with the frequent and highly technical changes in superannuation law and especially the laws relating to SMSFs. If there is a concern, it is advisable to refer the review of the deed to a superannuation expert.

Some of the more complex problems which may arise in a SMSF trust deed include:

1. Where the deed has not been updated to provide for:
   1. Superannuation splitting
   2. The number of members to be up to 6 (if there are 6 members). The change from a maximum of 4 to a maximum of 6 occurred on 1 July 2021
   3. The introduction of the transfer balance cap in July 2017. SMSF trust deeds may need to be updated to give trustees the power to “rollback” excess pension funds into their members’ accumulation accounts. The cap is $2 million (approx) from 1 July 2025.
2. The version of the deed produced is not the latest version.
3. An imbalance of the powers of the trustees. This may be an issue if there is a lengthy delay in negotiating or litigating a settlement or the parties agree that after court orders are made, they will both remain members of the fund for some time.
4. A provision that a member ceases to be a member in the event that the trustee determines on reasonable grounds that the member should cease to be a member.

The minimum record keeping requirements are summarised on the ATO website.

The following records need to be kept for a minimum of 5 years:

• accurate and accessible accounting records that explain the transactions and financial position of the SMSF
• documentation showing decisions made about what benefit payment type was paid (pension, lump sum or a combination of both) and the account the payment was paid from
• an annual operating statement and an annual statement of the SMSF’s financial position
• copies of all SMSF annual returns lodged
• copies of transfer balance account reports lodged
• copies of any other statements required to be lodge with the ATO or provided to other super funds.

The following records need to be kept for a minimum of 10 years:

• minutes of trustee meetings and decisions (if matters affecting the fund were discussed, for example review of the fund’s investment strategy, or the commencement or commutation – in part or in full – of an income stream)
• records of all changes of trustees
• trustee declarations recognising the obligations and responsibilities for any trustee, or director of a corporate trustee, appointed after 30 June 2007
• members’ written consent to be appointed as trustees
• copies of all reports given to members
• documented decisions about storage of collectables and personal use assets.

What if the trust deed is lost?

SMSF trustees/directors must retain the original hard copy of their fund’s trust deed (and any subsequent updates or deeds of variation) while their fund is in operation and for a period of 5 years after the fund’s final annual tax return is submitted to the ATO. A SMSF which cannot produce the original trust deed is non-compliant. Despite this, however, SMSF trust deeds are lost relatively frequently.

Sometimes a copy of the deed is found because it was given to a bank, a lawyer, accountant or financial adviser. If so, the copy can help with the preparation of a new original.

There is no clear approach to be taken if a copy cannot be found. Options include:

• Approach the Supreme Court for an order regarding how the SMSF should be administered. This may be disproportionately costly;
• If the fund balance isn’t significant, and the investment strategy is relatively simple, trustees may take the risk and continue to operate without the trust deed;
• Wind up the SMSF;
• Prepare a replacement deed if sufficient information exists.

4. Joining the trustee to family law court proceedings

There are circumstances where it may be necessary or helpful to join the trustee of a superannuation fund to proceedings. This is particularly relevant where there is a dispute about the fund’s rules, the implementation of a split, or the conduct of the trustee.

5. Managing super splitting involving multiple member funds

Where there are multiple member funds, the structure of the fund, the relationship between the members and trustees, and the asset mix can affect the implementation of a split. Careful attention is required to ensure the split can be completed without unintended tax or compliance consequences.

6. Specific issues concerning SMSFs, defined benefit schemes, and military pensions

Special care is needed where the superannuation interest is in an SMSF, a defined benefit scheme or a military pension. These interests may be difficult to value, difficult to split, or subject to special rules under the fund documentation or legislation.

7. What if the implementation of the split is delayed?

Delay can materially change the value of a superannuation split. Contributions may continue, values may move, and the fund rules may affect whether the split is implemented as expected. If there is a delay, the timing of the operative date, the condition of release and whether the split is by base amount or percentage becomes critically important.

8. Recent cases

Recent cases show the wide range of outcomes that can arise when courts are dealing with superannuation, defined benefit interests, pensions, SMSFs and non-superannuation property.

Minh & Dieu [2021] FedCFamC2F 649 considered the matters the court is required to consider under s 79 or s 90SM and reached different conclusions in relation to the percentage division of superannuation versus non-superannuation.

Hyndman & Garside [2022] FedCfamCIF 14 involved an SMSF owning the parties’ business property and business interests. The court ordered the property including superannuation be divided 50/50. The court also dealt with pension payments, rent arrears owed to the SMSF and the husband’s entitlement to include real property in specie in the roll-out to him.

Vinci & Adamo [2021] FedCFamC1A 53 dealt with a substantial non-superannuation property pool and a defined benefit pension. The trial judge determined that each party should retain their modest superannuation entitlements, but the wife’s pension was to be equally split. The Full Court confirmed there was no error in the approach taken and noted that the evidence was sufficient to support the percentage order.

Winnel & Winnel [2022] FedCFamC1F 82 involved parties who could access their superannuation and do so free of tax. The court ordered that the wife retain all the superannuation so that the husband could retain the home.

Bonnett & Bonnett [2021] FedCFamC1A 95 upheld an outcome of the wife receiving 70% of the parties’ superannuation on the basis that there was equality of contributions but the s 75(2) factors favoured the wife.

Branic & Sandberg [2021] FCCA 1652 involved insurance proceeds and an SMSF. The court assessed contributions to the superannuation fund as 75% by the wife and 25% by the husband and treated the outcome as consistent with the augmented pool.

Amos & Louis [2022] FedCFamC2F 1074 involved both superannuation and non-superannuation property. The court assessed different contributions to the two pools and made a 7.5% adjustment in favour of the wife under current and future considerations.

Conclusion

Almost all property settlements involve superannuation. A decision must be made as to whether there should be any splitting of the superannuation interests of the parties. This will normally require an examination of the nature, form, value and characteristics of the superannuation entitlements of the parties, the values of non-superannuation, the total value of the property pool and the personal circumstances of the parties. If a superannuation entitlement is to be split its value must be determined under s 90XT(2) FLA. If it is not being split the family law value need not be used. There will be questions of how much the split should be and in the case of SMSFs and DBFs the implementation of the split often raises other complex issues.

The diversity of superannuation interests, the personal needs of the parties and the proportion of superannuation vis-à-vis non-superannuation gives opportunities for many different outcomes when considering the impact of superannuation. Whilst with accumulation funds the process may be simple, the ages and needs of the parties may still impact a just and equitable outcome. Once SMSFs and DBFs are in the mix though, the options and opportunities are considerably greater.