After separation, superannuation is treated as property under the Family Law Act. However, it is different from other types of property because it is held in a trust and is subject to rules on accessing it.
The laws on superannuation splitting apply to both married and de facto couples, except for de facto couples in Western Australia, who are not eligible to split superannuation. However, the value of any superannuation benefits will be taken into account in financial settlements.
Superannuation splitting will not make the superannuation benefit into a cash asset and it will remain subject to the applicable superannuation laws.
You may enter into a formal written agreement to split superannuation. To do so, both you and your partner must have your own lawyer. The lawyer must sign a certificate stating that independent legal advice about the agreement and your rights has been given to both of you. The agreement is not registered in court and you do not need to go to court or give a copy to the court. Each of you must keep a copy and a copy is sent to the trustee of the Superannuation fund.
You can choose to have your agreement made into a formal court order by filing consent financial orders to achieve superannuation splitting. If you cannot reach an agreement, you can ask the court for an order to split superannuation.
In order to get the information to value the superannuation a Form 6 Declaration, a Superannuation Information Request Form and the appropriate Superannuation Information Form must be sent to the trustee of the fund. The fund may also charge a fee. Your lawyer can do this for you or you can request the information yourself using the Family Court’s Superannuation Information Kit. The information from the trustee may be enough to value the superannuation but as superannuation can be complex you may need to seek an expert valuation. You should get legal advice about this.
The superannuation splitting legislation sets out methods for valuing most types of superannuation, but there are exceptions and these may have an approved different valuation method. The Attorney General approves methods or factors for determining the value of certain superannuation funds and information is available on their website.
If you and your partner have reached an agreement, then an Application for Consent Orders can be filed in the Family Court, with a draft consent order setting out the agreement. If the court approves your application the orders can be made in chambers without either of you attending court. If you cannot agree on the split then the superannuation benefits will be dealt with by the court in making financial orders.
In deciding on a split the court is required to value the interest in accordance with any method set out in the Family Law (Superannuation) Regulations which provide methods for valuing superannuation interests and set out the way in which the payment split is to be put into effect. The superannuation benefits must be valued and the superannuation fund trustee must be advised about the orders you are seeking before the court orders that they be split in property settlement proceedings.
The trustee has the opportunity to attend the court hearing and can object to the superannuation splitting orders that you are seeking. If the superannuation order is made, whether by consent or after a hearing, you must provide a sealed copy of the order to the trustee.
When payment from a superannuation interest becomes payable to the fund member, the amount decided under the superannuation split will be paid to the non-member and the remainder will be paid to the member.
Payment splitting does not usually create a new superannuation interest for the non-member. However, in some instances, if there is a payment splitting agreement or order, the splitting laws may allow the creation of a new interest for the non-member, or may allow a transfer or roll-out of benefits for the non-member to another superannuation fund.
These options are known as interest splitting and it lets the non-member access their share of the entitlements independently of the member.