When separating couples start thinking about property settlement, attention usually turns to the obvious things: the family home, savings, investments, cars and other assets accumulated during the relationship.
But there can be another significant asset sitting quietly in the background: superannuation.
Because super isn’t money most of us interact with every day, it can be surprisingly easy to overlook when thinking about your financial position after separation. And when one person has significantly more super than the other, or you simply don’t know what your former partner has, it can raise some important questions.
So, where does superannuation fit into a property settlement, and what happens if you don’t have the full picture?
Is superannuation included in a property settlement?
Superannuation can be relevant when resolving financial matters following the breakdown of a marriage or de facto relationship.
That can come as a surprise. Unlike money sitting in a bank account, super is generally associated with retirement, which can make it feel separate from the assets you’re dealing with now.
But overlooking it could mean overlooking an important part of the financial picture.
This can be particularly relevant where there is a substantial difference between the parties’ superannuation interests. Relationships don’t always allow both people to build their retirement savings at the same rate. Career breaks, caring responsibilities and different working arrangements can all mean that two people reach separation with very different financial positions.
Before decisions about a property settlement can be made, understanding what actually exists is an important starting point.
What if you don’t know how much super your former partner has?
This is where things get interesting.
You might know where your former partner works, what car they drive and even roughly what they earn, but have no idea where their super is held or what superannuation interests they have.
Since 1 April 2022, there has been a mechanism available to help address this issue.
Parties who are part of a current family law proceeding seeking financial or property orders can apply directly to the Federal Circuit and Family Court of Australia to request certain superannuation information about their spouse, former spouse or de facto partner that is held by the Australian Taxation Office (ATO).
The request is made using an approved Superannuation Information Request form through the Commonwealth Courts Portal.
Importantly, this isn’t a general search tool available to anyone following a separation. You must be part of a current property settlement proceeding in relation to your marriage or de facto relationship to make the request.
When completing the request, as much information as possible should be provided about the person whose superannuation information is being sought. According to the Court, the more information supplied, the greater the chance the ATO will be able to successfully identify the individual.
What information can come back?
According to the Federal Circuit and Family Court of Australia, the response to a superannuation information request should generally be available through the Commonwealth Courts Portal within seven days.
The ATO’s response to the Court will advise that:
- the individual was located and superannuation was found;
- the individual was located but no superannuation was found; or
- the individual could not be located.
The response is visible to the parties and their legal representatives.
There is also an important limitation to understand: information provided by the ATO may not reflect the person’s current superannuation account balance.
If the latest balance is required, information can be sought from the relevant superannuation fund using Form 6 contained in the Court’s Superannuation Kit.
In other words, identifying superannuation and establishing its current value may require different steps.
Does finding super mean it will automatically be split?
No.
Identifying a superannuation interest doesn’t, by itself, determine what the final property settlement will look like.
The purpose of obtaining financial information is to help establish a clearer picture of the parties’ financial circumstances. What happens from there will depend on the circumstances of the individual matter.
This is also why comparing your property settlement with a friend’s, colleague’s or family member’s outcome can be misleading. Two couples may appear to have similar assets on the surface while having very different financial circumstances once everything is considered.
Superannuation is one piece of a much bigger picture.
Why the full financial picture matters
Property settlement decisions can have consequences that extend well beyond the immediate aftermath of separation.
It’s easy to focus on the assets you can see: the house you’re living in, the savings account you use or the car sitting in the driveway. Superannuation is different. It may be years or decades before you access it, but that doesn’t mean it should simply disappear from the conversation.
Understanding the financial position of both parties can help ensure discussions about property settlement are based on information rather than assumptions.
The Court’s superannuation visibility process is particularly significant in circumstances where one party does not know what superannuation interests the other holds. It provides a mechanism, once property settlement proceedings are underway, for certain information held by the ATO to be requested through the Court.
There are also strict limitations on information obtained through this process. Superannuation information provided for the purposes of property settlement proceedings must only be used for those proceedings and is subject to restrictions on further disclosure.
Don’t forget what’s sitting in the background
When you’re separating, there is already a lot competing for your attention. Where you’ll live, what happens with the children and how you’ll manage financially in the short term can understandably feel far more urgent than an account you may not access until retirement.
But your future financial position matters too.
Superannuation can be easy to forget precisely because it isn’t sitting in front of you. Taking the time to understand what forms part of the broader financial picture can help you approach your property settlement with greater clarity and make informed decisions about what comes next.
At The Family Law Co., we practise exclusively in family law and help clients understand their options when navigating property settlement after separation. If you’re unsure how superannuation may be relevant to your circumstances, or you’re concerned that you don’t have a complete picture of the financial position – our team can provide clear, practical advice tailored to your situation.
Book a consultation with The Family Law Co. to discuss your property settlement and understand your next steps.
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