Financial Agreements and Superannuation

Superannuation is relationship property

Under Australian family law, superannuation is treated as property and can be divided between separating partners. This surprises many people who think of their super as purely their own retirement savings — separate from the relationship.

But superannuation accumulated during a relationship is generally considered a financial contribution to the couple's joint position. A person who took time out of the workforce to care for children, for example, may have a reduced super balance — and the law recognises that their domestic contribution supported the other partner's ability to accumulate super.

How super can be split

Superannuation is not divided in the same way as other property. It cannot simply be withdrawn and transferred. Instead, a superannuation interest splitting order allows a portion of one partner's superannuation to be allocated to the other partner's own superannuation account — where it stays until they reach preservation age.

This mechanism exists because superannuation is a long-term vehicle. The split preserves the retirement savings purpose of the funds rather than converting them into immediate cash.

What a BFA can address

A Binding Financial Agreement can include provisions about superannuation. Common approaches include:

• Documenting the current balance of each partner's superannuation as separate property • Agreeing that superannuation accumulated before the relationship will not be subject to splitting • Setting out how superannuation accumulated during the relationship will be treated • Confirming that each partner retains their own superannuation on separation

Because superannuation is governed by its own legislative framework — including the Superannuation Industry (Supervision) Act — any super provisions in a BFA need to be carefully drafted. Your lawyer will advise on how to address superannuation appropriately in your specific situation.

Disclosure of superannuation

Both partners should disclose their superannuation balances as part of the financial disclosure process. This includes:

• The name of each superannuation fund • The current balance or estimated balance • Whether the super is in accumulation phase or pension phase • Any defined benefit entitlements (common in some government and public sector schemes)

If you are unsure about your superannuation balances, you can find this information through your fund's member portal or through myGov.

Considerations for couples with different super balances

It is common for one partner to have significantly more superannuation than the other — particularly where one partner has worked full-time throughout the relationship and the other has taken time out for caring responsibilities.

A financial agreement can address this imbalance directly, either by agreeing that each partner retains their own super, or by acknowledging the disparity and agreeing on how it will be treated. The goal is that both partners approach the agreement with a clear understanding of the implications — which is exactly what independent legal advice is designed to ensure.