Under the Family Law Act, superannuation entitlements of separated spouses can be divided as part of a property settlement—this is called ‘superannuation splitting’. The Court can also divide the entitlements of eligible de facto couples.
Do the laws apply to me?
If separated from your spouse or divorced, yes. If your de facto relationship ended after 1 March 2009, yes. If your de facto relationship ended before 1 March 2009, different laws apply and you can only receive a share of your ex-partner’s super if he/she agrees.
What is the process? Must it involve the Court?
You need to obtain information from the super fund’s Trustee using a ‘Request for Superannuation’ form. You will likely need a valuer to determine the value of the entitlements for family law purposes.
If you agree about a super split, the Court does not need to be involved. You can send a Superannuation Agreement to the Trustee to implement. However, if you are also dealing with other property matters, you may want to enter into a Consent Order which you lodge with the Court for approval and then send to the Trustee.
If you and your spouse/partner cannot agree on a super split, you can apply to the Court for a super split order. The same applies to de facto couples separated after 1 March 2009.
It sounds complicated…
It can be and you need legal advice. There are also important time frames that need to be kept in mind. Super is treated differently to other assets in property settlements because, often, it cannot be accessed for many years. Also, super splitting is not mandatory and each case must be assessed on its facts.