Family law in Australia recognises that Superannuation, while not available as a cash amount, is an important financial resource and accordingly, there are superannuation splitting laws in place for when a marriage ends.
The rules also apply to de facto partnerships, except in Western Australia, although a WA court will still take super into account when splitting your property. This anomaly is expected to be corrected by the end of 2018 to bring WA in line with the rest of the country on this issue.
When can you do a super splitting agreement?
Determining if and how super will be split, is usually done at the same time as you decide on how your other assets are to be divided. It is generally formalised by a binding agreement or court order.
A superannuation agreement can be put in place before, during or after your relationship and may be part of a broader ‘binding financial agreement. ’If you don’t have a binding financial agreement in place you can obtain a Court order.
There are two types of court orders:
Consent orders, which is where you don’t have a binding agreement, but can agree regarding how your property will be divided. A consent order essentially approves your agreement and makes it binding. However, the court must consider whether the agreement is fair prior to approval of orders.
Financial orders, which is where you can’t agree about how your property will be divided. In this case, the court will consider a range of factors to determine how your super and other property should be split.
Splitting super – a step-by-step process
While the process can vary depending on your situation, a superannuation split usually follows these steps:
1. Identify and value the super accumulated while you were together
The first step is to find out what your super and your partner’s super is currently worth. You can send a request to your spouse’s super fund for information, even if you aren’t a member of the fund.
2. Seek legal advice
If you don’t already have an existing binding financial agreement in place, it’s important to seek independent legal advice about whether to put in place a binding financial agreement (for example if you can agree with your former partner regarding the division of your assets) or whether you will need to seek a court order if you can’t agree.
If you and your former partner are able to enter into a binding financial agreement, make sure you keep a copy as it’s not registered in court.
You can also in many cases arrange (by agreement or via a court order) for a ‘payment flag’ to be placed on your and your partner’s superannuation accounts. This prevents most withdrawals being made from the account prior to any super split occurring. A payment flag can be lifted by agreement or by a court.
If a court (financial) order is required, each partner’s contributions to the relationship are assessed
A court-issued financial order will decide how your super is divided. Like other assets, super is not necessarily split according to how much each of you contributed financially. For instance, contributions like taking care of the children and the family home may be taken into account. A court may also consider the financial position that both parties will be in after the divorce or separation, which may affect how super is divided.
3. Split the super
Once you have a valid agreement or court order, you’re able to apply for your superannuation to be split. Note that where you or your spouse’s super balance exceeds certain thresholds, you may need to be separated for 12 months prior to being eligible to split super.
As super is usually held for your retirement, in most cases superannuation that is split will need to remain within the super system until then. You can generally either establish a new account within the existing fund or transfer it to a new fund.
If you have reached the age when you can access your super, these benefits become accessible in the same way as the rest of your super.
In some situations, it may not be possible or practical to split superannuation immediately. Where this is the case, a 'payment flag' may apply until a future time (for example when a retirement benefit becomes payable in the future) at which point benefits can normally then be split.
Published by, Divorce Resource
The information in this article is general in nature and should not be considered as professional advice. It has been sourced from information provided on the public websites of varous Superannuation Funds. You should seek the advice of a registered professional who will be able to appropriately assess your specific circumstances before offering their expert opinion.