In Australia, de facto partners have the same legal rights as married spouses in most superannuation matters. Understanding how super works in a de facto relationship — and what happens if you separate — is important for protecting your retirement savings.
Who Qualifies as a De Facto Partner for Super Purposes?
Under the Superannuation Industry (Supervision) Act 1993 (SIS Act), a spouse includes:
- A person you are married to
- A person in a de facto relationship (living together on a genuine domestic basis)
- A person in a same-sex relationship (including de facto)
For super purposes, there is generally no minimum period requirement — de facto status is based on the genuineness of the domestic relationship, not a fixed duration.
Death Benefit Nominations and De Facto Partners
De facto partners can be nominated as beneficiaries of your super death benefit. They are treated identically to married spouses:
- Eligible for a Binding Death Benefit Nomination (BDBN)
- Eligible as a reversionary pension beneficiary
- Receive death benefits tax-free (as they are tax dependants)
If you have a de facto partner and no nomination, the trustee can still exercise discretion to pay your death benefit to your partner — but a binding nomination removes the uncertainty.
Super Splitting After Separation
When a de facto relationship breaks down, superannuation can be divided as part of the property settlement — just as with married couples.
How super splitting works:
- Family law proceedings under the Family Law Act 1975 allow super to be split between former partners
- An “eligible rollover fund” or the other person’s super fund receives the split amount
- The split is not a tax event — it is treated as a rollover
- The receiving partner holds the split amount in their own super under normal preservation rules
Important: Super is not automatically split on separation. You need to either:
- Reach a binding agreement with your former partner (documented through the Family Court or with solicitors), or
- Obtain a court order splitting super
Separation itself does not cancel a BDBN or change your super arrangement — you must update your nominations and potentially split super separately.
Updating Nominations After Separation
After separation from a de facto partner:
- Update your BDBN immediately: A former de facto partner who is still nominated will receive your super death benefit unless you change the nomination
- Review reversionary pension nominations: If you’re in pension phase with a reversionary nomination to a former partner, this needs updating
- Consider interim arrangements: During a property settlement, both parties need financial advice
Property Settlement and Super
In de facto separation, the Family Court (or Federal Circuit and Family Court) has jurisdiction to deal with property — including super. Factors considered include:
- Duration of the relationship
- Each person’s contributions (financial and non-financial)
- Each person’s future financial needs
- The super balance of each partner
Superannuation is treated as property in a settlement — its value is assessed and may be split, but it remains in super until preservation age.
For more: Estate Planning and Super, Super Splitting After Separation, Spouse Contributions. For legal and financial advice on de facto separation and super, speak with a licensed financial adviser and family lawyer. Find an adviser via MoneySmart.