Divorce and Superannuation

When married or de facto partners separate, they will often need to divide all their assets – including their superannuation. Splitting superannuation after separation can be a complicated and lengthy process, so it’s always recommended that you seek legal advice first. At Culshaw Bishop Lawyers, our separation lawyers are dedicated to helping you understand the divorce and superannuation splitting process.

Divorce and superannuation entitlements

Under the Family Law Act, superannuation is treated as property. Laws on splitting superannuation allow the super of both parties in a divorce to be divided following the relationship breakdown. Any accrued superannuation can be split except for:

Superannuation entitlements less than $5000
Pension payments to dependent children
Temporary disability entitlements which have been paid for less than two years

Do I have to split my superannuation in divorce?

Because superannuation is considered property, it generally goes into the asset pool to be divided after a relationship breakdown. However, it’s up to the parties to agree on how they will fairly split that property. Learn more: Splitting Assets in Divorce

Is a de facto entitled to my superannuation?

The Family Law Act also allows separated de facto couples to split their superannuation. However, in order for a party to seek superannuation interest, the de facto couple must be in a relationship for at least two years unless there are children involved.

How is superannuation split in divorce?

If the involved parties decide to split and share their accrued superannuation, the splitting can occur in one of two ways. By mutual agreement or by court order. For the superannuation to be split, both parties’ superannuation must be calculated and valued. In some circumstances, the parties may be able to negotiate a split specific to their reasonable needs post-separation. The Court’s responsibility is to ensure the splitting of the superannuation is just and equitable for both parties.

How long do I have to split superannuation following a divorce?

When it comes to divorce and superannuation, the time limits are as follows:

Divorced couples must apply for superannuation orders within twelve months from their divorce coming into effect, whereas de facto couples must apply within two years after separation.

Self managed super funds and divorce

Divorce and superannuation gets a bit more complicated if you’re a member of a self-managed super fund (SMSF). Being a member of a SMSF means you are a trustee and you have several obligations that need to be considered which can leave room for risks. We recommend speaking with our experienced family lawyers to ensure you fully understand the SMSF process and obligations.

Is superannuation included in property settlement?

Superannuation entitlements are treated as property as the result of a divorce or relationship breakdown, meaning they can be split amongst the separating parties during property settlement.

Is super split 50/50 in a divorce?

Unless agreed on by both parties, superannuation isn’t necessarily split 50/50. There is no specific formula to determine what is just and equitable and numerous factors can alter the division of superannuation which may result in an unequal split.

Can I use my super to pay out my ex?

Superannuation is held ‘On Trust’ which means the funds are subject to remain in superannuation, however either party can access the funds if they meet required ‘conditions of release’ including reaching a certain age, purchasing your first home, or experiencing serious injury, illness, or financial hardship.

A superannuation splitting order can be an alternative or reduce the cash payment.

What is a superannuation splitting order?

A superannuation splitting order is where there is a reduction in one party’s superannuation entitlement and interest and a corresponding increase in the other party’s superannuation entitlement and interest.

The Family Law Act provides guidelines for superannuation splits, with Section 90XT for married couples and Section 90YY for de facto couples outlining the three types of splits that may be received by the non-member spouse. These include:

a specific dollar amount of the member spouse’s superannuation
a percentage of the splittable payment; or
for percentage only interests, an amount calculated in accordance with the regulations by reference to the percentage specified in the order.

Superannuation equalisation is a process that may be included in the splitting order, and it involves adjusting the superannuation balances of both parties on an equal basis.

Divorce and Superannuation

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