When a relationship ends the property pool can be divided between the two parties. The superannuation accumulated by you and your former partner are considered part of that property pool. However, even though super is part of the overall property pool, the Family Law Act does treat super differently to other property such as houses and bank accounts.
There are two parts to splitting super:
- Valuing your superannuation interests, taking into account both the accumulated funds as well as the potential funds that may be accumulated after separation
- Working out how to split superannuation payments
Note: The superannuation laws in the Family Law Act apply to most marriages de-facto relationships, depending on the date of separation, but the superannuation laws do not apply to de-facto couples in Western Australia, and may not apply to former couples who have already finalised their property settlements.
Because splitting super is a complex topic, there are regulations that set out the methods for valuing superannuation interests. Valuing your super is not a legal requirement, except when the court is making orders, but obviously it is a sensible step to take anyway.
For your super to be accurately valued, both you and your former partner will need to request information from your superannuation funds by submitting a Superannuation Information Request Form to begin the valuation process. You should be aware that your superannuation fund can charge reasonable fees for the administrative costs of responding to your requests for information, and for any actions they need to take to comply with the superannuation agreement or court orders.
After your superannuation has been valued, then the superannuation agreement can be made between you and your former partner, or you and your spouse can agree to a court order made by consent which can “split” the superannuation between you both, or order that it be retained by the party who is the account holder.
Your superannuation may not be split at all, if the rest of the property pool can be divided up in such a way that each of you receive an appropriate share, or if the amount of super is so small that it is simply not cost effective to split it. A case by case assessment must be undertaken, and for anything under $5000, no split can occur at all.
The superannuation trustee must agree, before the order is made, that they do not object to the terms of the orders, and that they will implement the agreement or the orders that are given.
If superannuation is being split, that does not mean that it will be converted to cash. Instead, the superannuation split will occur when the member of that super fund is eligible for payment (e.g. at retirement). A court order or superannuation agreement “splitting” super will in most cases mean that whatever the agreed amount is (whether a percentage or an amount) will be transferred from one member’s fund to another, to allow the separated parties to access super entitlements independently of each other.
If you’ve got more questions about splitting super, call our office to make an appointment with one of our family lawyers to discuss your matter further.