Family Law Blog

What Happens to Superannuation in Separation?

As we’ve mentioned before, spouses’ superannuation funds are considered part of the property pool during separation.

This means that your superannuation is considered an asset that is available to be divided in some proportion between you and your ex as part of the separation process.

But how does this work? Isn’t superannuation protected until retirement age? How does the Court decide what to do with superannuation if the parties can’t agree?

How can my Ex Get at my Superannuation? Isn’t it Protected?

It seems intuitively strange to many people that superannuation can be potentially accessed by your ex. This is especially the case when you can’t even access your own superannuation in most cases until retirement age.

And for many years that was the case – superannuation remained protected in the name of the individual party who earned it in the first place.

But in 2002 the Family Law Act was amended to specifically allow for superannuation to be split in appropriate circumstances.

So unless your superannuation amount is very small, you should assume that it’s “on the table” as part of your negotiating position. It will certainly form part of your compulsory financial disclosure as part of the process.

Will My Superannuation Just be Split 50/50?

You shouldn’t assume your superannuation will be split 50/50 with your ex. At least, that’s not the default position.

As with everything in relation to separation and the distribution of the property pool, the Court is going to look at a lot of different factors when it comes to deciding whether to split one spouse’s superannuation.

That said, while the Court might sometimes just treat superannuation as part of the overall pool, it is often considered separately given its slightly unique status.

The Court might consider, for example:

  1. The comparative size differences of the superannuation funds;
  2. Each spouse’s overall contribution to the pool of assets;
  3. The reasons why one spouse might not have a significant superannuation pool – for example, is it because they stayed home to raise children of the relationship?
  4. What phase the superannuation fund is in – is it in the “growth” phase, or the payment phase?

As with all property decisions in a property settlement, all relevant factors can be considered when deciding whether to split, and if so how, your superannuation. That includes the overarching principle of whether the split is just and equitable.

Does Splitting Superannuation Convert it to Cash?

No.

If your superannuation is split with your ex, an amount is split from your fund and rolled out into another fund in the name of your spouse. Your spouse can then only access those funds under the usual superannuation rules and laws as apply to the fund. If you are both still working it will likely remain preserved and inaccessible until retirement or another eligible time.

Can We Agree on How to Split Superannuation?

Yes, even your superannuation can be the subject of a negotiated outcome.

However in order to ensure that your superannuation fund actions the split, you are best to get a Court order embodying the terms of your agreement (which, as we mention here, is our usual recommendation anyway).

It’s also a requirement to seek approval from the trustee of your super fund of your proposed wording for the orders, this is called “procedural fairness”. The trustee will check that the orders conform with their specific requirements so that they can effect the superannuation split after the orders are made by the Court.

How Does Splitting Superannuation Get Calculated?

The simplest way to split superannuation is to pay out a base amount in a lump sum to the other party – eg, spouse A gets $75,000 as a lump sum from spouse B’s super fund.

This is easiest to calculate and deal with, particularly when the fund is in its growth phase and subject to fluctuations in value.

The other way to do it is to split using a percentage of the overall fund. This is more difficult to quantify given the moving feast of calculations, growth and fees involved. As a result it is more often used where a party is either entitled to receive 100% of the fund, or where the fund is in payment phase rather than growth phase.

Of course some superannuation funds are far more complex, and obtaining a true valuation can be much more complicated than simply counting funds. This may need to be the subject of more extensive evidence and investigation to arrive at a true calculation of the value.

What is the Process?

Once you have secured a Court order with the relevant superannuation split, you will need to notify the trustee of the superannuation fund and serve them with a sealed (formal) copy of the court order (or a certified copy of an agreement if you have gone down that path).

The trustee will then process the order, usually within around 4 business days. It will then issue to the relevant parties a payment notice setting out the details of the payments to be made.

From there, the recipient party will receive their new superannuation interest which can either remain with that fund or can be rolled into an existing superannuation account with another fund.

Splitting Superannuation is Necessary to Consider but can Get Complicated

Superannuation can be a bit contentious. Many people believe that super is protected from property settlements.

However, considering whether to claim (or resist) a superannuation split in a just and equitable way is a necessary part of the separation process.

If you seek advice early, your family lawyer can then help you assess the likely value of the fund, seek full disclosure from your ex (if it hasn’t been provided already) and give you some sound advice about what a reasonable split might look like in your circumstances.

If you need help with your own superannuation split, get in touch with us here and we can help you out.

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