How is superannuation divided in a divorce in QLD?

For many Australians, superannuation is the largest or second-largest asset in the matrimonial pool. Dividing it is a complex technical process requiring specialized legal documentation.

1. Superannuation is “Property”

While you cannot “cash out” your super until you retire, the Family Law Act 1975 (Cth) treats it as property that can be divided. This applies to both married and de facto couples.

2. The Splitting Process

Step 1: Valuation

You must obtain a formal valuation of the superannuation interest.

• Industry/Retail Funds: You send a formal request (Form 6) to the fund trustee.
• Defined Benefit Funds: These require a more complex actuarial valuation.
• SMSFs: May require a professional valuation of the underlying assets (e.g., commercial property held by the fund).

Step 2: Agreement or Order

One spouse (the “member”) agrees to transfer a specific dollar amount or percentage to the other spouse (the “non-member”). This is finalized via:

• Consent Orders: Approved by the Court.
• Financial Agreement: A private, binding document signed by lawyers for both parties.

Step 3: Procedural Fairness

Before a split can occur, the Trustee of the super fund must be given Procedural Fairness. This means sending them a copy of the draft orders and giving them 28 days to object to the terms.

3. Important Rules

• Preservation: The money does not become cash. It is transferred from the member’s account into the non-member’s account. It stays in the “super system” until the recipient hits preservation age.
• Tax: Super splits are generally not subject to Capital Gains Tax (CGT) at the time of the split (CGT rollover relief applies).
• De Facto Limits: De facto couples in Western Australia have different rules, but in Queensland and all other states, de facto super splitting is fully recognized.

Related Topics

• Property Settlement Process
• De Facto Relationship Rights
• Family Law Practice Area

Don’t Guess Your Future

Leaving superannuation out of a settlement can be a multi-hundred-thousand dollar mistake. We ensure that our clients receive a fair share of the “hidden” wealth in super funds.

Separated with super? Contact Emma Senior today. Call (07) 5532 8777.