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Superannuation Splitting Order in Divorce: What You Need to Know
When a couple separates or divorces, one of the most overlooked aspects of a property settlement is superannuation. As Australians, we often consider our superannuation as a long-term retirement asset, but when a relationship ends, this asset can become crucial to a fair division of property. At Aylward Game Solicitors, we understand how complicated the […]
Superannuation Splitting Order in Divorce: What You Need to Know
When a couple separates or divorces, one of the most overlooked aspects of a property settlement is superannuation. As Australians, we often consider our superannuation as a long-term retirement asset, but when a relationship ends, this asset can become crucial to a fair division of property. At Aylward Game Solicitors, we understand how complicated the process of superannuation splitting can be. Here’s an expert guide to help you navigate the legal framework, your rights, and when and how you can split superannuation following a divorce or separation.
What Is a Superannuation Splitting Order?
A superannuation splitting order is a legal order made by the Family Court of Australia, which allows one person’s superannuation to be divided between themselves and their former spouse or partner. Under Australian family law, superannuation is treated as a form of property and can be considered in property settlements, regardless of whether you are married or in a de facto relationship.
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The order enables a portion of the superannuation funds to be transferred into the non-member spouse’s superannuation account, ensuring that both parties are treated fairly in the division of assets. In many cases, especially in longer-term marriages or relationships where assets have been blended, superannuation splitting ensures both parties are supported in their retirement years.
When Can You Get a Superannuation Splitting Order?
You may be eligible to apply for a superannuation splitting order if:
- You are married or in a de facto relationship (including same-sex couples in Queensland, with some exceptions in Western Australia).
- You are going through a property settlement or divorce.
- You want the Court to divide your superannuation as part of the divorce process.
It’s essential to act quickly once a divorce or separation occurs, as superannuation entitlements must be valued and addressed as part of property negotiations. If you’re in Brisbane, the Gold Coast, or the Sunshine Coast, our expert legal team at Aylward Game Solicitors can provide assistance.
Understanding Superannuation Splitting Rules
Superannuation splitting can be done through either:
- A Superannuation Agreement (by mutual consent between parties).
- A Court Order (if the couple cannot agree).
According to Part VIIIB of the Family Law Act 1975 (for married couples) and Part VIIIC (for de facto couples), the Family Court has the authority to split superannuation interests during property settlements. The method of splitting, whether a dollar amount or percentage of the fund, will be determined based on fairness and equity.
Types of Superannuation Splits:
- Specific Dollar Amount: A set base amount is allocated to the non-member spouse.
- Percentage Split: The non-member spouse receives a percentage of the member spouse’s superannuation as it becomes payable.
- Interest-Based Split: An amount calculated by reference to the percentage specified in the order.
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How Superannuation Is Valued and Split
To initiate the superannuation splitting process, you must first obtain a valuation of your superannuation entitlement. This step is crucial as it helps in determining how much of the super fund should be transferred to the non-member spouse. There are various ways to value superannuation, especially when it involves defined benefit funds or self-managed super funds (SMSFs).
At Aylward Game Solicitors, Ian Field, an Accredited Specialist Family Lawyer, helps clients in Brisbane, Gold Coast, and Sunshine Coast navigate these complex processes. Ian’s experience ensures that clients understand their superannuation interests and how to fairly divide them.
Superannuation Splitting for De Facto Couples
Under the Family Law Act 1975, de facto couples also have the right to apply for a superannuation splitting order. However, this may not apply in Western Australia, where the law does not allow the splitting of superannuation for unmarried couples. If you are in a de facto relationship and need help with superannuation splitting, Aylward Game Solicitors can provide expert advice.
Steps to Obtain a Superannuation Splitting Order
Step 1: Obtain Information and Valuations
To begin, you’ll need to request superannuation details from the relevant superannuation fund. This is typically done by submitting a Superannuation Information Request Form (Form 6), which is part of the Superannuation Information Kit provided by the court. An expert financial adviser or actuary may be required to provide a valuation, especially for defined benefit super funds.
Step 2: Consent Orders or Court Orders
If both parties agree to the split, a Consent Order can be filed with the Federal Circuit and Family Court of Australia (FCFCOA). The court will review and approve the orders in chambers without the need for a court hearing. However, if no agreement is reached, a Court Order will be required, and both parties may need to attend a hearing.
Step 3: Serve the Superannuation Fund Trustee
Before any superannuation splitting order can be made, the trustee of the super fund must be notified of the proposed orders. If there are any objections, the parties must address them before proceeding.
Step 4: Implementing the Order
Once the superannuation splitting order is made, the trustee will implement it by creating a new superannuation account for the non-member spouse, transferring funds, or allowing the non-member spouse to roll over their portion to a new fund.
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Contact Our Accredited Family Law Specialists.
Why Do You Need Legal Advice for Superannuation Splitting Orders?
Superannuation splitting orders are a critical part of divorce and property settlements. Failing to seek proper legal advice or missing out on entitlements can result in unfair settlements. At Aylward Game Solicitors, Ian Field and the legal team ensure that your superannuation is fairly divided based on your circumstances.
FAQs on Superannuation Splitting Orders:
What is a superannuation splitting order?
A superannuation splitting order is a court order that divides one partner’s superannuation and deposits a portion into the other partner’s superannuation account during divorce or separation.
Can de facto couples apply for superannuation splitting?
Yes, de facto couples can apply, except in Western Australia.
How is superannuation split in a divorce?
Superannuation can be split by a percentage or a fixed dollar amount, depending on what is agreed upon or ordered by the court.
How do I value superannuation for splitting purposes
You need to request a valuation from the superannuation fund, and if necessary, an expert or actuary may be required for complex fund types.
Is there a fee for requesting superannuation information?
Yes, the superannuation fund may charge a fee for providing the information.
Can I split superannuation without going to court?
Yes, if both parties agree, superannuation can be split via a Consent Order without attending a court hearing.
What happens after a superannuation splitting order is made?
The trustee of the superannuation fund will implement the order, transferring the agreed portion to the non-member spouse’s account.
Can superannuation be split in a Binding Financial Agreement?
Yes, superannuation can be addressed in a Binding Financial Agreement (BFA), but both parties must seek independent legal advice.
What are the tax implications of superannuation splitting?
Superannuation splitting does not trigger tax unless the non-member spouse elects to receive the funds in cash before meeting retirement conditions.
How long does it take to implement a superannuation splitting order?
The process typically takes several weeks to months, depending on the complexity of the superannuation and the cooperation of both parties.
Protect Your Rights, Preserve Your Peace
Contact Our Accredited Family Law Specialists.
Conclusion:
Superannuation splitting is an essential step in securing a fair property settlement during a divorce or separation. With the help of Ian Field, an Accredited Specialist Family Lawyer at Aylward Game Solicitors, you can navigate this process smoothly and ensure your financial future is protected.
Whether you’re in Brisbane, the Gold Coast, or the Sunshine Coast, Aylward Game Solicitors is here to provide expert legal advice on divorce, superannuation splitting, and property settlements. Contact us today to schedule a consultation.
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