Superannuation splitting in separations & divorce

Rockhampton & CQ Lawyers & Solicitors

What are the rules for superannuation splitting in divorce & separations?

Superannuation splitting is the concept where, if you separate or divorce, you may be entitled to claim (or obliged to give) part of your superannuation to your ex-spouse. After separating, your respective superannuation balances are valued and split. If your superannuation is valued at $5000 or more, your superannuation can be split. Superannuation splitting is typically dealt with as a part of a property settlement.

Superannuation splitting follows this general process:

Evaluate your superannuation – the value of you and your former partner’s superannuation should be evaluated before it can be split. If you are not a member of your former partner’s superannuation fund, you can access their details by request. Some super funds also charge a fee for providing this information.
Apply for a court order – if a superannuation agreement cannot be reached between you and your former partner, you will need to apply for a court order. A court-issued financial order will determine how your superannuation should be split.
Split your superannuation – when splitting your superannuation, it’s important to note that super funds are not a typical cash asset. Some super benefits cannot be paid until the beneficiary retires. This means that you may not be able to access the funds straight away, rather a split amount is ‘rolled-over” to a new superannuation account

Superannuation splitting – how do you settle it?

You can settle an agreement about a superannuation split by the following ways:

a formal written agreement requires that both you and your partner instruct a lawyer, who must sign a certificate, stating that independent legal advice about the agreement has been given.
Seek Consent Orders to split superannuation
If you cannot reach an agreement with your former partner, seek a court order to split superannuation.

Superannuation splitting – how does the court decide it?

The Court may make any decision it thinks is reasonable when splitting superannuation. Some of the orders that they might make include:

One spouse’s settlement may feature a portion of their partner’s superannuation.
If one spouse has a substantial amount of super while their partner has none, the court may decide to split the fund 50/50. Super can be split in any percentage.
One spouse may receive a greater portion of superannuation and less of a share in other assets. For example, the family home may be awarded to one partner, while the other receives more superannuation.

Splitting your superannuation allows for greater flexibility when structuring a property settlement. If you’re worried that the law may put you at a disadvantage, remember that the court treats each case individually. The unique circumstances of your separation (and the rules of your superannuation fund) will be taken into consideration, ensuring a reasonable outcome.

Common questions in superannuation splitting

Q. Can any kind of superannuation not be split by a court order

A. Yes. The law states that some superannuation interests are ‘unsplittable’. For example, if your super fund contains less than $5000, it cannot be split. There are a number of other circumstances, depending on the superannuation policy, where superannuation may be deemed “unsplittable”.

Q. Do I have to have my superannuation valued before it can be split?

A. You are not required by law to do so but, practically, you need to do so to ensure that the split is fair.

Q. What if I want to delay making a decision on how to split my superannuation?

A. If you need to defer your decision for some reason, you can make a flagging agreement. This prevents the fund’s trustee from taking any kind of payment away from the fund until the flag is lifted.

Q. What if I can’t reach an agreement with my former partner on the value of our superannuation?

A. The court will decide on the value of your superannuation if you can’t reach an agreement with your former partner.

Resources

Check out some of our recent legal updates and property resources that you might find useful on this Family Law Resources link. Please remember that these updates and resources are general guidance only.

The information on this page and the resources links is intended as guidance only. You should seek specific legal advice to ensure that you are properly protected and acting the appropriate way.

During family law legal matters, many issues come up that require the support of experienced social support works and other professionals. Here are some links to support resources that may help you (please ensure that you make yourself familiar with any confidentiality rules or seek advice from us).

Financial counselling & guidance links:

ASIC Moneysmart – financial guidance in the event of divorce or separation
ASIC Moneysmart – Divorce and Separation financial checklist
ASIC Moneysmart – Budgetplanner
Penda app – A free app for women experiencing financial abuse
Family Relationships Online – Government information and advice
Relationships Australia – Community-based, not-for-profit relationship support service
Department of Human Services: Child support – Government support for separated parents
Family Law Courts: Separation and Divorce

Relationship support:

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Terry Tummon – Principal Partner & Solicitor
Katina Perren – Solicitor & Independent Children’s Lawyer
Debbie Sloan – Family Paralegal
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