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property splitting of superannuation

Contact Armstrong Legal:
Canberra: (02) 6288 1100
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448

Kerry White

In a breakdown in marriage or de facto relationship, your superannuation can be divided in any proportion through an agreement or court order.

Armstrong Legal Canberra has a team of highly experienced lawyers specialising in family law in relation to superannuation. We provide valuable assistance in determining how superannuation is divided between you and your former partner.

Superannuation is dealt with separately to property orders.

There are two elements to splitting superannuation.

  • How to value superannuation interests (accumulated and potential)
  • How to split payments

Even though superannuation comes under a separate part of the Family Law Act, it is still taken into account in the overall property settlement, and is subject to the same principles, such that:

  • All superannuation is taken into account, regardless of when it was acquired (before or during marriage/ after separation).
  • It is not automatically subject to a 50/50 split.
  • The court will decide based on what is "just and equitable".

It is important to note that splitting superannuation does not enable you to access it any earlier. It is still subject to superannuation laws (accessible after retirement age).

Options for splitting superannuation

  • Financial Agreement
  • Consent Orders
  • Court Orders (in court)

Even when an application is made to a court, it is possible to reach an agreement at any stage, without the need for a court hearing.

What you need to do to split superannuation

Before you enter an agreement, file for consent orders or apply for a court hearing, you will need to obtain information to value your superannuation. This information can be obtained through communication with your superannuation fund trustee. To do this, you will need to provide the trustee with the following forms.

  • Form 6 Declaration (to show you are entitled to this information)
  • Superannuation Information Request Form
  • Superannuation Information Form

These documents are available in a Superannuation Information Kit at your nearest family law registry, or from the Family Court of Australia website.

Frequently asked questions

Q. Why are the superannuation splitting laws important?
A. Under the previous law, a superannuation interest could not be split, either by court order or agreement.

Q. What are the superannuation splitting laws about?
A. Couples either make an agreement or, if unable to agree, a court making an order to split a superannuation interest on relationship breakdown.

Q. Do the superannuation splitting laws apply to me?
A. The superannuation splitting laws apply to couples who were married or certain de facto relationships and couples who haven't settled their property arrangements.

Q. Do the superannuation splitting laws apply to all superannuation interests?
A. Most things are covered by the superannuation splitting laws. However, there are products that are not covered.

Q. Are there any superannuation interests that can't be split by agreement or court order?
A. Yes, most superannuation interests can be split. However, generally any interest that has a withdrawal benefit of less than $5,000 is not split as it would not be cost effective.

Q. Do I have to get legal advice in order to make a payment splitting agreement?
A. Yes, the payment splitting agreement won't be binding on the trustee of the superannuation fund if you don't get legal advice.

Q. When does my payment splitting agreement take effect?
A. Your payment splitting agreement becomes operative on the fourth business day after the day on which a copy of it is served on the trustee.

Q. What if we want to defer making a decision about how to split a superannuation interest?
A. You can make a flagging agreement with your trustee to refrain from making any payments until the flag is lifted.

Q. What happens if we can't agree on what to do with the superannuation?
A. A court can make an order splitting a superannuation interest, as part of a property settlement.

Q. Does the court have to value a superannuation interest?
A. Yes, the court must determine the value of the interest.

Q. What happens if either the member spouse or the non-member spouse dies and there is a payment split agreement or order in place?
A. The payment split will continue to operate unless the superannuation interest is paying an income stream that ceases on the death of the member.

where to next?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Canberra: (02) 6288 1100
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448

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