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Superannuation
The superannuation splitting law allows couples who are separating to divide their superannuation after a breakdown of a relationship. One partner may split their superannuation and make a payment to the other partner’s nominated superannuation account, however the usual restrictions on accessing superannuation will continue to apply. Superannuation splitting applies to both married and de facto relationships.
The laws regarding superannuation splitting after a relationship breakdown are complex and time-consuming, and time limits do apply. Understanding the financial ramifications of your divorce can be overwhelming. Honan Family Law is here to help navigate this process. Our experienced family law solicitors will provide advice on your personal situation, so you understand your legal rights and can make informed decisions.
How does a superannuation split occur?
For a trustee of a superannuation fund to split superannuation, the trustee of the superannuation fund must be served with either an order of the Federal Circuit and Family Court of Australia or a properly executed financial agreement providing for the superannuation split to occur.
Am I entitled to a superannuation split?
You may be entitled to a superannuation split, or you may be legally obligated to split your superannuation if you have had a marriage or de facto relationship breakdown.
Everything you need to know about a superannuation split
There is no ‘one size fits all’ approach, as every relationship is different and will have a different set of personal circumstances. Some couples choose to split their superannuation evenly, while some will want to have a split that takes into consideration their individual circumstances.
A mutual agreement split will be fairly straightforward, however some couples may have more difficult financial circumstances. As the law is complex, even amicable divisions may not comply. It is important you seek legal advice so you are properly informed of your options.
Separating couples will have one year to claim superannuation after their divorce has been finalised. If you are in a de facto relationship, you will have 2 years to claim from the date of your separation.
If you are concerned that your ex-partner will access your superannuation, you can apply to the Court for a “flagging order”. A flagging order will bind the Trustee of the spouses superannuation fund(s) to freeze their super account(s) until such time as property settlement between the parties is resolved and the Court makes a “flag lifting Order”.
A payment flag can be made by an order or by agreement in accordance with the provisions of the Family Law Act. A flagging order or agreement is a binding injunction on the trustee not to make any splittable payments from the nominated superannuation fund and is usually used in two distinct circumstances:
- where the value of superannuation interest is currently unknown but will be known in the near future; or
- where retirement is imminent and there is concern that the member may abscond.
If you cannot reach an agreement on how your superannuation should be split, you can apply to the Court for an order. The Court will consider factors under the Family Law Act to make an evaluation of a just and fair superannuation split.
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