Superannuation is considered as a type of property under the Family Law Act of 1975. This means the law may decide who gets superannuation in a divorce.

What is a superannuation split?

Superannuation splitting is the legal division of super assets as part of a divorce or separation settlement between married or de facto spouses; however, it isn’t an automatic process.

Splitting may only be done if the concerned parties apply for it and the division isn’t set at 50-50 – the court will determine the proportion as part of the divorce or separation proceedings.

Who are eligible for a superannuation split?

Both married and de facto couples may apply for a superannuation split if their relationship breaks down, but their eligibility also depends on the type of relationship and when the relationship broke down. The conditions for eligibility are as follows:

Married couples
Married or formerly married couples may only apply if, by 28 December 2002, they had not finalised or settled their property arrangements through a court order or agreement approved by the court under sections 79 and 87 of the Family Law, respectively. Married couples are not required to file for divorce before applying for superannuation splitting – but they should have separated and intend to finalise the arrangements on property and asset division. 

De facto couples
De facto couples in most states and territories may apply if they separated on 1 March 2009 or later. In South Australia, however, the law applies to couples who separated on 1 July 2010 or later.

Eligibility also depends on the geographical location of the relationship. The superannuation splitting laws don’t apply to de facto couples in Western Australian territories

Married or de facto couples in Western Australia
Western Australian territories don’t enforce the super splitting laws for de facto couples whose relationships are regionally connected to Western Australia.

However, de facto couples may soon be allowed to split their super after the state and federal governments agreed in 2018 to support a law reform.

What are the requirements to split super?

Splitting superannuation interests is not an automatic part of divorce or separation proceedings. One or both parties must apply for the split with the super trustee or in court. The applicant may be the member of the super fund or self-managed super fund (SMSF), but it may also be their partner who may or may not be a member of the same fund.

Couples who intend to split their superannuation are required to produce either a written formal agreement or a court order, depending on their circumstances.

Written formal agreement
A couple may simply draw up a written formal agreement that details how their superannuation interests will be divided. However, both parties must have their own lawyers to ensure that both have sought independent legal advice about the splitting and any agreement that it resulted in.

There must be at least three copies of the agreement to be kept by the following:

• one copy each for the couple
• one copy for the super fund trustee

The agreement doesn’t have to be registered or submitted in court; however, the couple may choose to turn it into a court order by filing a consent financial order.

Court order
If the couple can’t or refuses to come to an agreement, the Family Court or Federal Magistrate Court may decide on how to split super interests through a court order.

The court will first commence a valuation of the superannuation interest in question in accordance with the Family Law (Superannuation) Regulations. Afterwards, it will determine how much each spouse will receive based on the valuation.

The trustee should be informed about the court order for the superannuation split before any orders are made, because they are entitled to attend and object to the splitting orders. If the trustee assents, the couple must provide a sealed copy of the agreement to the trustee.

When does a superannuation split become effective?

The superannuation split’s effective date depends on the agreement or court order, but it may be before or after the relationship breakdown.

The couple may decide for the terms of the agreement to take effect immediately. If this is the case, they must have the superannuation interest valued immediately so that the trustee can pay out the correct amount to each party.

However, the couple may also decide to defer the effectivity to a later date or when one or both of them retire. This arrangement may be best suited for members of defined benefit funds, because these are harder to value.

It may also depend on the type of document that was created for the splitting.

If the splitting agreement is included as part of a binding financial agreement or prenuptial agreement between the couple, the splitting becomes effective according to what is stated in the document.

If the splitting agreement is part of a written formal agreement that was drawn up as part of the separation or divorce, then the conditions are effective once the agreement is finalised.

If the terms for the splitting agreement is part of the court order, then the court order would determine the effectivity date.

Seek legal advice

If you are in the midst of a relationship breakdown and wish to split your or your partner’s superannuation interest, consider seeking independent advice from a legal professional.