Superannuation in Property Settlement: What You Can Do if Your Former Partner Has Not Made Full Disclosure
- Kaela Louise
- Mar 3, 2022
- 3 min read
Superannuation is one of the most significant assets many Australians hold, and it forms part of the property pool available for division following a separation. Yet it is also one of the assets most commonly hidden or under-disclosed during family law proceedings.
If you are going through a property settlement in Australia and suspect that your former partner has not been fully transparent about their superannuation interests, you are not without options. Australian family law now provides a clear and accessible process for obtaining that information, and recent regulatory changes have strengthened the framework further.
The Obligation to Disclose
Parties to family law proceedings are required to provide each other with full and frank disclosure of all assets, liabilities and financial resources. This obligation includes superannuation interests, regardless of whether the fund is a retail fund, industry fund or self-managed superannuation fund.
Despite this obligation, it is not uncommon for parties to fail to fully disclose their superannuation, whether intentionally or through oversight. In the past, this left the other party with limited options and often significant cost to pursue the information they were entitled to.
The ATO Superannuation Disclosure Process
Since 1 April 2022, parties to current family law property proceedings have been able to apply directly to the Federal Circuit and Family Court of Australia to request their former partner's superannuation information from the Australian Taxation Office.
The process works as follows:
A party to current property settlement proceedings, or their legal representative, completes the Superannuation Information Request form through the Commonwealth Courts Portal
The Court verifies that proceedings are on foot before submitting the request to the ATO
The ATO responds within 5 business days, providing the Court with any superannuation information it holds
The information is then provided to all parties involved, including their family lawyers, typically within 7 days of the request being made
This process has significantly reduced the cost and complexity of obtaining superannuation information that a former partner may have failed to disclose.
What Information Does the ATO Provide
The ATO will generally provide the identity and value of each superannuation interest held by your former partner, as reported to the Commissioner of Taxation, as well as any account in their name regarding small amounts of ATO-held superannuation.
It is important to note that the ATO information provided to the courts is subject to change and may not be up to date. It is unlikely to be sufficient evidence for court proceedings on its own, and you should seek independent legal advice on the information. The most current balance information can be obtained directly from the superannuation fund using a Form 6 Declaration through the relevant Superannuation Information Kit.
Updated Regulations From 2025
From 1 April 2025, the Family Law (Superannuation) Regulations 2025 came into effect, replacing the Family Law (Superannuation) Regulations 2001 and updating the legal framework governing the division of superannuation assets during family law proceedings. These changes are designed to ensure the continued fair and accurate treatment of superannuation interests in the context of relationship breakdown and reflect the ongoing commitment to improving transparency in this area.
If you have previously received advice about superannuation splitting that predates these regulations, it is worth seeking an updated review of your position.
Why This Matters for Your Property Settlement
For many separating couples, superannuation is one of the largest assets in the property pool, sometimes the only significant asset. Where one party has been earning significantly more than the other over the course of the relationship, the superannuation gap can be substantial.
Prior to these changes, pursuing undisclosed superannuation information often required expensive subpoena applications or lengthy court proceedings, placing it out of reach for many people. The ATO disclosure process has made this significantly more accessible and has helped level the playing field for parties who may otherwise have missed out on entitlements they were owed.
Formalising any agreement about superannuation splitting requires specific documentation and must be done correctly. A superannuation splitting order can be included as part of Consent Orders, which provide both parties with legal certainty once approved by the Court.
Not Sure Where You Stand?
Understanding your entitlements in relation to superannuation, and how superannuation fits into your overall property settlement, is something we can work through with you in a Strategic Advisory Session.
In a single, fixed-fee appointment we will review your circumstances, identify the key issues in your property settlement including superannuation, and give you a clear strategy for moving forward.
Not sure if this is the right starting point? Book a free 15-minute introductory call and we will help you work out the best next step for your circumstances.
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