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.

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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.

De facto couples can make their own financial arrangements, like any other legally married couple in Australia, or they can turn to the courts to receive a court order. In order to turn to the courts, the de facto couple must meet one of the following conditions:

1. The relationship existed for at least two years OR
2. The couple has a child together OR
3. One person made significant financial or nonfinancial contributions to the relationship and would be at a disadvantage if no order was granted OR
4. The relationship was registered

A Binding Financial Agreement (BFA) is a legal agreement that allows parties to a marriage or de facto relationship to decide how their financial matters will be dealt with if their relationship breaks down.

Although often referred to as a “prenuptial agreement” or “prenup”, a Binding Financial Agreement can be entered into:

• before marriage or a de facto relationship;
• during a relationship; or
• after separation.

A BFA can provide certainty and assist couples in managing financial issues by setting out how assets, liabilities, financial resources and other matters will be dealt with in the event of separation.

Why Consider a Binding Financial Agreement?

There are many reasons why a person may consider entering into a Binding Financial Agreement.

Common circumstances include:

Protecting Existing Wealth or Assets

A person who has accumulated significant assets before entering a relationship may wish to clarify how those assets will be treated in the event of separation.

This may include:

• property;
• investments;
• shares;
• businesses;
• trusts; or
• other financial interests.

Protecting a Business or Professional Interests

Business owners and professionals may consider a BFA to help manage the potential impact of relationship breakdown on:

• family businesses;
• companies;
• partnerships;
• professional practices; or
• business succession arrangements.

Protecting Inheritances or Family Wealth

Some people wish to preserve family wealth, anticipated inheritances or assets intended to benefit children from a previous relationship.

Providing Certainty for Blended Families

Where a person has children from a previous relationship, a Binding Financial Agreement may form part of a broader financial planning strategy to provide clarity and certainty.

Addressing Significant Financial Differences

A BFA may be appropriate where there is a significant difference between partners in relation to:

• wealth;
• income;
• debts;
• financial resources; or
• future earning capacity.

Reducing the Risk of Future Disputes

Relationship breakdown can be emotionally and financially challenging.

A carefully prepared Binding Financial Agreement may help reduce uncertainty and avoid disputes about financial arrangements in the future.

Who Else May Consider a Binding Financial Agreement?

A BFA may also be considered by people who:

• have substantial debts;
• are entering a second or subsequent marriage;
• wish to protect particular assets;
• have complex financial arrangements;
• wish to address spousal maintenance obligations; or
• want greater certainty about future financial arrangements.

Are Binding Financial Agreements Automatically Enforceable?

No.

Binding Financial Agreements are technical legal documents and strict requirements must be satisfied for an agreement to be binding.

Both parties must obtain independent legal advice about:

• the effect of the agreement on their rights; and
• the advantages and disadvantages of entering into the agreement.

Because of the significant legal consequences, it is important that a BFA is prepared carefully and reflects the circumstances and intentions of both parties.

Binding Financial Agreement Lawyers Melbourne

At Mathews Family Law & Mediation Specialists, our Accredited Family Law Specialists provide advice about Binding Financial Agreements for couples before, during and after relationships.

We assist clients with:

• preparing Binding Financial Agreements;
• reviewing proposed agreements;
• providing independent legal advice;
• financial arrangements following separation; and
• complex family law financial matters.

Our approach combines specialist family law expertise with practical advice designed to provide clarity and certainty.

Contact Mathews Family Law & Mediation Specialists to discuss whether a Binding Financial Agreement is appropriate for your circumstances.

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

Same-sex couples have the same rights and obligations under Australian family law as other couples when it comes to financial agreements, property settlements and relationship breakdown.

A Binding Financial Agreement (BFA) can be entered into by eligible same-sex couples:

• before entering a marriage or de facto relationship;
• during a relationship; or
• after separation.

A BFA allows couples to agree in advance how certain financial matters will be dealt with if their relationship ends.

What Can a Binding Financial Agreement Cover?

A Binding Financial Agreement may address a range of financial issues, including:

• responsibility for household and relationship expenses;
• whether particular assets are treated as individual or joint property;
• how property acquired during the relationship will be treated;
• responsibility for debts and liabilities;
• how assets and financial resources will be divided if separation occurs; and
• spousal maintenance arrangements.

The agreement can be tailored to reflect the individual circumstances, financial arrangements and future intentions of each couple.

Why Might Same-Sex Couples Consider a Binding Financial Agreement?

There are many reasons a same-sex couple may consider entering into a BFA, including:

• protecting assets accumulated before the relationship;
• clarifying financial arrangements where one or both partners have significant assets;
• protecting business interests, trusts or investments;
• providing certainty for blended families;
• addressing differences in wealth, income or financial contributions; and
• reducing uncertainty in the event of separation.

Every relationship is different, and the suitability of a Binding Financial Agreement will depend on each couple’s circumstances and objectives.

Do I Need Legal Advice Before Signing a Binding Financial Agreement?

Yes.

Binding Financial Agreements are complex legal documents and strict requirements apply for an agreement to be legally binding.

If you have reached an agreement with your partner, it is important to obtain independent legal advice before signing any document.

An experienced family lawyer can help you understand:

• your legal rights;
• the effect of the proposed agreement;
• the advantages and disadvantages of entering into the agreement; and
• whether the agreement properly reflects your intentions.

Binding Financial Agreement Lawyers Melbourne

At Mathews Family Law & Mediation Specialists, our Accredited Family Law Specialists assist same-sex couples with:

• preparing Binding Financial Agreements;
• reviewing proposed agreements;
• providing independent legal advice;
• advising about property and financial arrangements; and
• resolving complex financial matters following separation.

Our approach combines specialist family law expertise with practical advice designed to provide certainty and protect your interests.

Contact Mathews Family Law & Mediation Specialists to discuss whether a Binding Financial Agreement is appropriate for your circumstances.

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.