Superannuation Splitting in Divorce

When a marriage or de facto relationship breaks down property can be divided between the parties. Superannuation is treated as property under the Family Law Act 1975 but it differs from other types of property because it is held in a trust. Superannuation splitting laws allow superannuation to be divided when a relationship breaks down. This is a complex area of the law and you should get legal advice.

An understanding of the fundamentals of superannuation as an asset is essential. Understanding the requirements of particular funds is essential. Understanding how to value a particular fund is essential. Understanding the taxation consequences of interests and orders is essential. Drafting binding Orders that will be enforceable regardless of unforeseen changes in the balance of the superannuation fund is essential.

There are a number of elements to splitting superannuation:

  • How to value superannuation interests (accumulated and potential)

  • How to split payments

It is important to note that:

  • All superannuation is taken into account, regardless of when it was acquired (before the marriage, during the marriage, and after separation);

  • Superannuation is not automatically subject to a 50/50 split;

  • The court will decide based on what is “just and equitable”;

  • Splitting superannuation does not entitle you to access it earlier as it is still subject to the superannuation laws.

Superannuation can be split by:

  • an order of the Family Court or Federal Circuit Court;

  • consent orders;

  • a superannuation agreement (a financial agreement that deals with a superannuation interest).

This is a complex area of the law and you should get legal advice. You can Contact Us to discuss your property settlement, superannuation splitting and any related issues. Our initial consultation is free of charge and beyond that we are a fixed fee family law practice. If you want to get started online, please complete our New Client Form.