The Ins and Outs of Splitting Superannuation

by Matthew Elvin

Superannuation forms part of the assets that are distributable between the parties after the breakdown of a relationship or a marriage. To make a split between parties fair, it is common for some superannuation to be split from one party’s superannuation fund into the other’s fund. This split can occur either pursuant to a Court Order or a formal agreement between the parties.

Superannuation splittingWhether a superannuation split is to occur under an agreement or a court order, the first step is always to find out the relevant information of the parties’ superannuation fund(s). This information will allow the parties to value the superannuation interests, and then negotiate the essential terms of the superannuation split. The information is also important so that the parties can include the proper information about the superannuation fund on their agreement or court order.

There are many different types of superannuation fund, and your fund may have specific requirements or processes that need to be met, and we need to know about these.

Once the amount of the superannuation split has been agreed, the exact terms of the proposed Court order or agreement must be drafted. It significantly speeds the process up if this is done correctly the first time, otherwise the superannuation fund is likely to require that the wording be changed.

Where a superannuation split is to occur under a Court order, the next step is to serve the superannuation fund with notice of the exact terms of the proposed superannuation split. This should be done at least 28 days before it is anticipated that the Court will make the order. The superannuation fund must have an opportunity to review the proposed order and potentially object to it. If this has not occurred, a Court cannot make the order.

Where the split is to occur under an agreement (rather than a Court Order), then serving notice on the superannuation fund is not required, but we strongly recommend doing it anyway.

Once served with the exact terms of the proposed split, the superannuation fund has 28 days to consider the terms. If it has an objection, the terms will probably need to be re-drafted and then re-served. It is therefore important to serve the superannuation fund as early as possible, especially where a Court date is looming. Once the superannuation fund advises that it does not have an objection, then a Court may make the terms into a binding splitting order. The splitting order can then be served on the superannuation fund, who will effect it.

If you have any questions about splitting superannuation at Family Law, do not hesitate to contact TBA Law for assistance.

Contact us to arrange a chat. It doesn’t hurt to ask.