Superannuation in Property Division

When a couple separates or divorces, or a de facto relationship[i] ends, a property must be divided. The property includes all of the assets – houses, cars, jewelry, furniture – and all of the liabilities, like loans and mortgages.  Superannuation – the money individuals set aside to have when they retire – is now also included in those assets that need to be divided fairly between a couple, whether married, de facto heterosexual or de facto same sex.  In the past, superannuation was considered a financial resource, similar to salary or other income. Today, however, most couples weigh superannuation funds as if they are marital assets or property.

Part VIIIB of the Family Law Act, 1975 (FLA) covers issues dealing with superannuation and families. The law requires that the superannuation benefits due to one spouse or de facto partner must be divided with the other spouse or partner. But there are several difficulties with dividing superannuation. Firstly, if a couple divorces before retirement, the superannuation funds are not yet available. So while a couple may divide up their property at the age of 45, they may not see funds from superannuation for another 20 or 30 years.  Other problems…..

The law recognizes these problems and offers three ways a divorcing couple can divide superannuation interests.

1. “Split”.  The first method is to split the interest into two accounts or benefits. This can be done either by a payment split when the superannuation becomes due (say, at retirement) or through an interesting split, which means each partner receives a superannuation interest. With an interesting split, the partner receiving the new benefit can keep the money in the original account until it comes due, or open an entirely new account. Nobody receives an actual cash payment – the money remains in a superannuation fund.  Tax issues must be calculated before the payment or interest is split.
2. “Flag”.  The second approach to dividing superannuation is to flag the benefit for a later date. In this scenario, the couple marks the benefit and the trustee of the superannuation fund is not allowed to touch it until the “flag” is lifted, either by agreement of the parties or with a court order.  The couple can then decide what happens to the fund only later after the person who owns the superannuation account retires.
3. Leave it alone.  In this case, couples consider superannuation a financial resource. When dividing up their assets, superannuation is only included in the calculation as a source of income, not as an asset.

Splitting the Superannuation Now

Typically, divorcing couples split their superannuation. Most couples choose this approach because it enables them to know exactly how much money they are receiving and allows them to make a clean break, without having to return to financial issues ten, twenty or thirty years later.

There are several steps needed to split the superannuation:

Step 1:  Request information from the partner’s superannuation fund.  

 There are two forms that a spouse must submit to the trustee of the superannuation fund:

1. Form 6 Declaration, which proves to the trustee that you are entitled to see the information and
2. the Superannuation Information Request Form. These forms can be obtained online

You must be “eligible” to receive the information from the fund.  An eligible person is:

1. The member of the fund or
2. The spouse of the member of the fund or
3. If (1) or (2) died, the deceased person’s legal representative or
4. Someone who plans to enter into a superannuation agreement with the member

Step 2: Evaluating information from the superannuation fund.  

The law requires the fund to provide information to the member of the fund and his or her spouse. The fund may provide information regarding the value of the superannuation or information that helps the person requesting information determine the value of the fund. The trustee should also notify the requester whether or not the fund may be split.  Once this information is obtained, the numbers must be calculated using specific formulas, depending on the type of fund. An expert in family law or accounting can help determine the correct formula to use in order to obtain the correct amount of interest each party is entitled to from the superannuation.

Step 3:  Turn to the courts for an order.   

Couples may sign their own splitting agreement and take it directly to the trustee of the superannuation fund. Alternatively, couples can turn to the courts with their own financial agreement already signed. Finally, if a couple can’t agree, they may obtain a court order.

1. If both sides agree about the value of the fund and it’s division, they can submit an Application for Consent Orders, which includes their agreement regarding superannuation. This agreement is binding only if both parties signed it AND both received independent legal advice.  This is the case regarding all financial agreements between couples divorcing.
   

   De facto couples terminating their relationship may also submit a financial agreement regarding superannuation, but only if they were residents of New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory or Norfolk Island when the agreement was made.

2. If the parties cannot come to their own agreement, they may turn to the court for Orders.

In either case, the trustee of the fund must be notified that the court is being asked to give orders. This is to ensure that the request being made complies with the fund’s rules. Also, the trustee is entitled to attend the court hearing and oppose the orders.

Step 4: Send a copy of the agreement or court order to the superfund trustee. 

Once the court gives orders, the superannuation fund must be sent a sealed copy of the decision.

Step 5: Split the superannuation benefit. 

Generally, the superannuation benefit will be split into two funds, one for each partner. There may be administrative costs for splitting the fund.

Contact Mathews Family Law to speak with one of our specialist solicitors and family law property lawyers to discuss your superannuation split today. Call our office on 03 9804 7991 and book a consultation with a divorce and family law attorney.

[i] Laws on the splitting of superannuation do not apply to de facto couples from Western Australia.

Property Division – The Basics

Whether you were party to a valid marriage or a de facto relationship, you are entitled to property division. While the courts maintain broad discretion with regard to property division, they strictly adhere to the following four-step process to determine who gets what.

1. Identify/value the property – includes all assets and liabilities
2. Consider contributions of the parties – includes financial and non-financial contributions
3. Consider relevant factors – including but not limited to age, health, income, an standard of living of the parties
4. Ensure order is just and equitable – the order must be fair

Generally, the courts will look to split the net asset pool of the parties equally, unless while applying steps one through four it is apparent that an unequal split of the assets would be just and equitable.

The goal of property division is to both to allow parties to finalise their economic relationship, and also to recognise contributions to property. However, while the goal is to allow the parties to reach economic independence, a valid property order may in fact be varied under certain circumstances.

Contact the team at Mathews Family Law to speak with a family law attorney today, and discuss your family law property settlement matter.

Property Division – Field & Basson

Field & Basson – [2013] FamCAFC 32

This is an appeal on the division of the property made by the courts between a husband and wife following their divorce.

The wife, aged 47 and the husband, aged 48, were married in 1994 and separated in 2009.  The wife brought assets amounting to $373,471 to the marriage, including five properties, furniture, a car and cash.  The husband brought to the marriage assets amounting to $45,000, including a car, cash and one property plus a superannuation of over $2,000.  Both worked at the time of the marriage and the wife had additional income from her investment properties.

The couple developed a business together and as it grew, the husband resigned from his employment and received his superannuation, which had a gross value of almost $107,000.  The husband and wife both worked in the business and the husband helped maintain and renovate the wife’s properties.  They also took out a loan on the business, and the loans were secured through mortgages on two of the wife’s properties.  The business was not successful and in 2011 the husband found employment elsewhere and only the wife remained working at the business.  In December 2011, the wife suddenly shut down the business.

The Federal Magistrate

The Federal Magistrate gave orders for a property settlement in March 2012.  The judge calculated the assets and liabilities of the couple, including the business, their debts and all of the properties.  The Federal Magistrate took into consideration each partner’s contribution – both financial and nonfinancial – to the asset pool.  He also adjusted the wife’s contributions since she had the greater responsibility for child care and the husband earned more money.   He concluded that the wife should receive 87.5% of the net assets and the husband should receive 12.5% of the assets.

The wife made it clear that she did not want to sell any of the property in order to pay off the debts.  In order to end the joint property relationship, the judge ordered that all of the business stock as well as the jeep should be transferred to the husband, and the wife retains her property and the debt.

Husband appeals – division of property not weighted correctly

The husband claimed on appeal that the judge erred by giving more weight to the wife’s contributions than to the husband’s.   The appeals court began it’s response by explaining that they cannot interfere with the discretion of a lower court judge unless the decision was “plainly wrong”.   It is not enough to say that the appellate court would have come to a different decision in order to overturn the lower court decision.

The appeals court rejected the husband’s first claim on appeal that too much weight was given to the wife’s initial contributions.  The Federal Magistrate clearly stated in his decision that both parties contributed equally but the wife brought in “significantly greater initial contributions”.   The husband never articulated the basis of his claim, other than to bring several other cases, which he then asked the judge to ignore.

The appeals court also rejected the husband’s claim that a weighting of 25% to the wife was incorrect and that more weight should have been given to his non-financial contributions.  The husband provided no information that would demonstrate that the Federal Magistrate, who detailed how he came to his assessment, was “plainly wrong” in the conclusions he reached.   The appeals court cited earlier cases which also translated the “qualitative” contribution of an asset to a “quantitative” number.   The appeals court found that the judge described his reasoning and used his discretion appropriately.

Finally, the appeals court rejected the father’s claim that the Federal Magistrate assumed first that all sides contributed equally and only then made adjustments.  The Federal Magistrate clearly delineated the contributions from each side and the weight of these contributions and only than concluded that they were equal (other than the wife’s significantly greater initial contributions).

If both parties have reached a property division agreement, how can they be sure their agreement is binding and enforceable?

Parties are often able to reach an agreement about a property settlement with the help of their lawyers. Where parties reach an agreement they can apply to the Court for Consent Orders which is a relatively simple and inexpensive process. When Consent Orders are made the parties gain the benefit of knowing their agreement is binding and enforceable.

Can family violence affect the division of property?

If there has been violence in the relationship, this can affect the division of property. This is due to the possibility that the effects of violence may have limited the ability of a party to contribute.

Alternatively, violence or other conduct may have resulted in long term effects to the party’s health and therefore could be a factor to consider under the ‘additional factors’.

What happens when parties cannot agree about the division of property?

If negotiations fail and you cannot reach an agreement with your former partner about your property settlement then you will need to file an application for property settlement in the appropriate Court.

There are ongoing opportunities for settlement of the proceedings, even after filing an application with the Court. Most applications are settled by consent and without a decision being made by the Court.

If a settlement is not reached, then the Court will decide how the property should be divided after a hearing which follows the four step process.

What happens when parties are able to reach an agreement about the division of property?

Your family lawyer will carefully consider all aspects of your case and advise you on your entitlements. Your lawyer will assist you to negotiate with your former partner in an attempt to reach an amicable outcome.

Parties are often able to reach an agreement about a property settlement and they can then apply to the Court for Consent Orders which is a relatively simple and inexpensive process.

If Consent Orders are made then the parties can rely on the knowledge that their agreement is binding and enforceable. An additional advantage is that certain tax benefits may be available to you.

An alternative to Consent Orders is a binding financial agreement which has different considerations and benefits.

What happens when the parties are unable to reach an agreement about the division of property?

If you cannot reach an agreement with your former partner then an application for property settlement must be filed. There are ongoing opportunities to settle proceedings before a decision is made by the Court. Where a settlement is not reached then the Court will make a decision as to how the property of the couple should be divided after a hearing. If the property is complex then the Family Court will hear the matter.

Pre-Marital and Post-Marital Property

When a couple divorces (or de facto or same-sex couples terminate their relationship), one of the major decisions to make is “who gets what”.  A pre-nuptial agreement (often called a ‘pre-nup’) may help make this division easier.  If a couple can decide between them and come up with their own agreement, long court battles can be avoided. If not, the courts have their own way of dealing with property division. In Australia, the courts place all property into one pool and then divide it “equitably” or fairly.  Everything is included and considered joint property by the courts.

The law governing property division(link to “Property Division FAQs”) between spouses or de facto couples is Part VIII of the Family Law Act, 1975 (FLA). The law provides guidelines for the courts to use when dividing property. There are a number of factors the court will consider and which couples should know about.  Below is a list of some considerations.

Think about the children

Before even entering into the fight, divorcing couples should consider their children when dividing up property. It might be more “fair” to sell the marital home, but parents (if they can afford to) should also consider the impact of this change on the children. If parents are going to share parenting time, they should think about what children will need in each home and also divide accordingly. If one parent is moving to a smaller home, he or she might not have space for so much furniture, so why demand it just for the sake of being fair. Both parents should consider the physical and emotional needs of their children, not just what they themselves believe they are entitled to receive. 

Depreciation of ownership rights

Over time, the contribution of the person who brought the property decreases and the contribution of the other partner increases. For example, one person may have purchased the house prior to the marriage, but the other partner paid most of the mortgage on it for the next 20 years.  The investment in the house may be equal by the time the couple splits up and the court will consider this relevant in making an equitable distribution.

The value of the property when it was acquired.

The courts will consider the value of the property when it was brought into the marriage as well as the length of the marriage. There is a difference between a house that was worth $100,000 and one worth $2 million. If a couple was married for only a short period and during that time the marital home tripled in value, how much is the spouse who purchased it prior to the marriage entitled to?  How much is the other spouse, who paid next to nothing in terms of mortgage and maintenance, entitled to?

Non-financial contribution

The courts in Australia today recognize that in many marriages today, one partner may earn a high salary while the other contributes to the marriage in a non-financial capacity. This role has a value that also needs to be measured for property purposes. Many couples decide that one partner will stay home to care for the house and children. This enables the other partner to obtain an education, gain professional experience and earn a higher wage. The stay-at-home parent is entitled to financial compensation for his or her job at home and for allowing the other spouse professional development.

The parent who stays at home makes other large non-financial contributions to the home. By being at home, the family saves thousands of dollars on child care and possibly cleaners and cooks. Finally, the at-home spouse may undertake do-it-yourself jobs, like painting, also worth a good deal of money to the family, but without any actual monetary compensation.  Imagine a spouse who repaints the inside of the house.  Not only has the family saved on the expense of paying an outside contractor but the value of the home has also increased.

Use and maintenance of the property

The court will consider not only the worth of the couple’s property but also how it is used. In one family, for example, the father stays home to care for the children. He is responsible for all household work – cooking, cleaning, gardening, and paying bills. The mother, in turn, works long hours to provide a good income and financial stability.  No doubt the mother “earned” her share of the house, but so did the father. The court might ask who actually needs the home more. In this case, the court may consider equitable distribution to mean that the father keeps the house and the mother receives other property.

Future needs

Section 75(2) of the FLA lays out the factors a court uses to determine the “future needs” of each spouse. The court considers age, health, professional training and ability and property and financial resources, among other factors.  Based on this analysis, the court may decide that a particular spouse is entitled to more of the marital property, to compensate for that person’s weaker ability to earn a living.

Family law property matters are complex, and can benefit from the guidance of specialist family law attorneys. Contact Mathews Family Law to discuss your family law property settlement today.

The Importance of Finalising Your Property Settlement & the Dangers of Delay

How Can I Formalise My Property Settlement?

There are two primary ways to formalise a property settlement in Australia:

1. Consent Orders
2. Binding Financial Agreements (BFAs)

The most appropriate option depends on your individual circumstances and legal objectives. Our Accredited Family Law Specialists can advise which approach is best suited to your situation.

Consent Orders

If you and your former partner have reached an agreement, you can jointly apply to the Federal Circuit and Family Court of Australia for Consent Orders.

Consent Orders:

• Record the terms of your agreement
• Are reviewed by the Court
• Become legally binding once approved
• Have the same legal effect as orders made by a Judge after a hearing

Before making Consent Orders, the Court must be satisfied that the proposed settlement is just and equitable.

Although it is possible to prepare the documents yourself, they are technical legal documents. Obtaining advice from an Accredited Family Law Specialist helps ensure your agreement accurately reflects your intentions and avoids costly mistakes.

Binding Financial Agreements (BFAs)

A Binding Financial Agreement (BFA) is a private legal agreement between parties that can deal with financial matters before, during or after a relationship.

A BFA may cover:

• Division of property
• Financial resources
• Superannuation (where applicable)
• Spousal maintenance, including permanently resolving future maintenance claims where appropriate

Unlike Consent Orders, a BFA is not approved by the Court. Instead, strict legal requirements must be satisfied before it becomes legally binding.

Importantly, each party must receive independent legal advice before signing the agreement. Failure to comply with these legal requirements may result in the agreement being challenged or set aside.

Consent Orders or a Binding Financial Agreement?

Both options provide legal certainty, but they serve different purposes.

Consent Orders may be appropriate where:

• Both parties have reached agreement.
• Court approval is desirable.
• The proposed settlement is just and equitable.

Binding Financial Agreements may be appropriate where:

• Greater flexibility is required.
• Parties wish to keep their financial arrangements private.
• Spousal maintenance rights are intended to be permanently resolved.
• The agreement is made before, during or after a relationship.

Our Accredited Family Law Specialists can advise which option best meets your circumstances.

Important Time Limits

Many people mistakenly believe they must wait until they are divorced before dealing with property settlement.

This is not the case.

Property settlement and divorce are separate legal processes, and financial matters can often be resolved before a divorce is final.

However, strict time limits apply:

• Married couples generally have 12 months after their divorce becomes final to commence Court proceedings for property settlement.
• De facto couples generally have two years from the date of separation to commence proceedings.

If these time limits expire, you may require the Court’s permission to proceed, which can be difficult, costly and is not automatically granted.

Obtaining legal advice early helps protect your rights.

Speak with an Accredited Family Law Specialist

Whether you have reached an agreement or are still negotiating with your former partner, obtaining specialist legal advice before finalising your property settlement can help protect your future.

At Mathews Family Law & Mediation Specialists, our Accredited Family Law Specialists provide clear, practical advice tailored to your individual circumstances. We can assist with Consent Orders, Binding Financial Agreements, negotiated settlements and Court proceedings where necessary.

Contact us today to arrange your complimentary 15-minute telephone consultation. We’ll explain your options, answer your questions and help you achieve a legally binding property settlement with confidence.

About Vanessa Mathews — Accredited Family Law Specialist

Vanessa Mathews
Principal | Accredited Family Law Specialist | Accredited Family Dispute Resolution Practitioner | Mediator

This page was prepared and reviewed by Vanessa Mathews, Principal of Mathews Family Law & Mediation Specialists. Vanessa practises exclusively in family law and assists clients throughout Australia with separation, divorce, parenting disputes, property settlements, financial agreements and other complex family law matters.

Helping families resolve conflict through specialist legal expertise and constructive dispute resolution.

Last reviewed: 24 July 2026

Disclaimer: This page provides general information only and does not constitute legal advice. Every family law matter is different and you should obtain advice tailored to your circumstances.

How Are Property Settlements Determined After Separation in Australia?

One of the most common concerns following separation is understanding how property will be divided.

In Australia, property settlements are governed by the Family Law Act 1975 and apply to both married couples and eligible de facto couples (including same-sex couples).

The purpose of a property settlement is not simply to divide assets. It is also intended to help finalise the financial relationship between the parties and provide certainty for the future.

The law recognises that contributions to a relationship are not limited to financial contributions. Contributions made as a homemaker, parent or through non-financial efforts are also considered.

The Importance of Finalising a Property Settlement

A formal property settlement can provide certainty and allow both parties to move forward independently.

An informal agreement between separating partners may not provide legal finality. Unless a property settlement is properly formalised, there may be a risk that a former partner could seek a property adjustment in the future.

Time limits also apply:

• Married couples generally have 12 months from the date a divorce order takes effect to commence property proceedings.
• De facto couples generally have two years from separation to commence property proceedings.

Obtaining advice early can help you understand your options and avoid unnecessary disputes.

How Does the Court Decide a Property Settlement?

Australian courts generally apply a four-step approach when determining property settlements.

Step One: Identify and Value the Property Pool

The first step is identifying all assets, liabilities and financial resources.

The property pool may include:

• real estate;
• bank accounts and investments;
• businesses and company interests;
• trusts;
• superannuation;
• vehicles and personal property;
• inheritances;
• liabilities and debts;
• other financial resources.

The value of the property is usually determined as at the date the matter is being considered, not simply the date of separation.

Once assets and liabilities are identified and valued, the net asset pool can be calculated.

Step Two: Assess Contributions

The Court considers the contributions made by each person throughout the relationship.

These may include:

Financial contributions

Examples include:

• income;
• savings;
• property purchases;
• mortgage repayments;
• business investments.

Non-financial contributions

Examples include:

• renovations;
• improvements to property;
• unpaid work that increases the value of assets.

Contributions as homemaker and parent

The law recognises that caring responsibilities and maintaining the household can be significant contributions to a relationship.

The assessment of contributions depends on the individual circumstances of each relationship.

Step Three: Consider Future Needs

The Court then considers factors that may affect the future circumstances of each person.

These may include:

• age and health;
• income and earning capacity;
• responsibility for children;
• financial resources;
• future care responsibilities;
• the impact of the relationship on earning capacity;
• other relevant financial circumstances.

This step recognises that an equal division of assets is not always an appropriate outcome.

Step Four: Is the Outcome Just and Equitable?

Finally, the Court must consider whether the proposed property division is fair in all the circumstances.

There is no automatic formula that determines how property must be divided.

Every relationship is different, and the outcome depends on the particular facts, contributions and future circumstances of each person.

Negotiated Property Settlements

Many property matters can be resolved without Court proceedings.

At Mathews Family Law & Mediation Specialists, we assist clients through a range of dispute resolution options, including:

• negotiation;
• lawyer-assisted settlement discussions;
• mediation;
• Family Dispute Resolution;
• collaborative approaches; and
• Court representation where required.

Our goal is to help clients achieve practical and legally sound outcomes while minimising unnecessary conflict and expense.

Property Settlement Lawyers Melbourne

Property settlements can involve complex issues including businesses, trusts, superannuation, inheritances and significant asset pools.

The Accredited Family Law Specialists at Mathews Family Law & Mediation Specialists provide strategic advice tailored to your circumstances and help clients throughout Australia resolve complex financial matters following separation.

Contact our team to arrange a consultation about your property settlement options.

About Vanessa Mathews — Accredited Family Law Specialist

This page was prepared and reviewed by Vanessa Mathews, Principal of Mathews Family Law & Mediation Specialists. Vanessa is an Accredited Family Law Specialist, Accredited Family Dispute Resolution Practitioner (FDRP) and Mediator who practises exclusively in family law. She assists clients throughout Australia with separation, divorce, parenting disputes, property settlements, financial agreements and other complex family law matters.

Helping families resolve conflict through specialist legal expertise and constructive dispute resolution.

Last reviewed: 24 July 2026

Disclaimer: This page provides general information only and does not constitute legal advice. Every family law matter is different and you should obtain advice tailored to your circumstances.