Retirement and Property Division: Divorce Strategy

When a relationship ends later in life, retirement moves from the background to the centre of a property settlement. Your superannuation, your savings, and your plans for life after work all become part of the conversation. If you are closer to retirement age, this matters even more, because you have less time to rebuild and your future income security is at stake.

This is general information only and is current as at 2026. It is not legal or financial advice. Every situation is different, so for a formal settlement you will need independent legal advice, usually through consent orders or a binding financial agreement.

Superannuation is treated as property

In Australian family law, superannuation is treated as a type of property. That means it can be valued and divided as part of a property settlement, alongside the home, savings, and other assets. Many people are surprised by this, because super usually feels separate and untouchable. In a settlement, it is not.

Splitting super does not turn it into cash. A split amount stays inside the superannuation system and remains subject to the usual rules, including preservation. In practice that means you generally cannot access it until you reach your preservation age and meet a condition of release. For anyone born after 30 June 1964, the preservation age is now 60. You can usually access your super once you turn 65 regardless of whether you have retired.

Splitting super is also not compulsory. Some couples decide to split a superannuation interest. Others leave super where it is and adjust the balance using other assets. If you do want to adjust superannuation, you have to do it when you formalise your arrangements, whether by agreement or by applying to the court.

How a superannuation split actually works

There are a few practical steps that often surprise people.

Finding out the value

You are entitled to information about your former partner's superannuation as part of a property settlement. The court has an approved Superannuation Information Request form, which you complete online through the Commonwealth Courts Portal and send to the relevant super fund to obtain a value. Different fund types are valued in different ways, and self managed funds and defined benefit schemes can be more complex, so it is worth checking the fund's requirements early.

Telling the fund

Before a superannuation splitting order can be made, whether by agreement or by the court, the trustee of the super fund must be given notice and a chance to object. This is a procedural fairness step. If you are seeking orders through the court, you generally need to serve the fund and give it written notice of the orders sought, at least 28 days before a final hearing.

Making it binding

A superannuation split can be formalised in two main ways. You can apply to the court for consent orders that record what you have agreed. Or you can enter a binding financial agreement, where each person must receive independent legal advice and their lawyer signs a certificate confirming that advice was given. Either way, the fund then acts on the order or agreement and splits the interest.

How age and retirement prospects affect a settlement

A property settlement is not simply a 50/50 split. The court looks at what each person contributed, both financially and as a homemaker or parent, and then considers the current and future circumstances of each party. Age, health, earning capacity, and time left in the workforce are part of that second step.

If you are approaching retirement, the court recognises that you have limited time to rebuild superannuation or savings. That can support a larger share of assets to help secure your retirement. If you are younger with strong earning capacity and decades of working years ahead, your future retirement prospects may carry less weight, because you have more time to recover.

Time out of the workforce is also relevant. If you stepped back from paid work to raise children or to support your partner's career, your super balance is likely lower than it would otherwise be. The court can take that into account so you are not left in a materially worse retirement position because of those contributions.

Recent changes you should know about

The Family Law Act 1975 was amended by the Family Law Amendment Act 2024, with the property changes taking effect from 10 June 2025. These apply whether your settlement is decided by a court or negotiated privately. A few points matter for retirement planning.

• The factors the court weighs when dividing property are now set out more clearly in the Act, including each party's current and future financial circumstances.
• The court must consider the economic effect of any family violence on a party's ability to contribute, which puts a long standing principle directly into the legislation.
• The court must consider whether either party has the care of a child under 18, including the need to provide appropriate housing for that child.
• There is now a clear, codified duty of disclosure. Separating couples must give each other and the court full and frank information about their finances, including income, property, and certain disposals of assets before or after separation. There can be serious consequences for failing to disclose.

Tax and your retirement

Tax is easy to overlook, and it can change what a settlement is really worth.

When superannuation is split under a court order or formal agreement, it generally moves from one fund to another without triggering a tax event at that point. The amount keeps its preserved status.

Where you divide other assets, such as an investment property or shares, a capital gains tax rollover may apply, but only if the transfer happens under a court order or a formal agreement such as consent orders or a binding financial agreement. The rollover does not apply to informal or private arrangements. Importantly, the rollover usually defers the gain rather than removing it. The person who receives the asset inherits the original cost base, so they may face a larger capital gains tax bill when they later sell. Two settlements that look equal on paper can be quite different once future tax is taken into account.

Because of this, it helps to think about what you will actually receive in your hands and over time, not just the headline figures.

Practical steps

• Gather your superannuation statements and understand what you hold, the type of fund, and when you can access it.
• Obtain a current value for each superannuation interest, using the court's information request process if needed.
• Avoid large super contributions or withdrawals while negotiations are underway, as this can complicate matters.
• Think about the trade off between liquid assets and superannuation. If retirement is years away, accessible assets may matter more. If you are close to preservation age, a super split may suit you better.
• Consider getting independent financial advice on whether a proposed settlement provides adequately for your retirement, alongside legal advice.
• If you are near Age Pension age, which is currently 67, factor in how your settlement might affect any future entitlement, since Age Pension is subject to income and assets tests.

Where Separately fits in

Separately gives you a clear, private assessment of your property position so you can walk into conversations and advice feeling prepared rather than overwhelmed. The assessment is a starting point for understanding, not a substitute for tailored advice.

For a settlement to be final and binding, you will still need independent legal advice and either consent orders or a binding financial agreement. Taking time to understand your retirement position now can make those next steps calmer and clearer.