Superannuation splitting

A ‘superannuation interest’ is a right to benefits (money) that you have accrued while you’re working, that you can only get when you retire. Until you retire, the benefits are held on your behalf by a superannuation fund, who has the role of trustee. Before making a superannuation agreement, we recommend valuing a superannuation interest. A superannuation interest must be valued before the court can consider making superannuation splitting orders. To value a superannuation interest, parties first need information about it.
An ‘eligible person’ can apply for information about a superannuation interest from the trustee of the interest. An eligible person includes:

• the member
• the former spouse of the member
• if the member or former spouse of the member has died, the deceased person’s legal personal representative
• a person who intends to enter into a superannuation agreement with the member.

To apply for information, use the form in the FCFCOA Superannuation Information Kit. Parties in WA should use the forms in the FCWA Superannuation Information Kit.

If you are already involved in a family law proceeding and seeking financial or property court orders, and it is not clear what superannuation interests exist or which trustee to contact, you or your legal representative can apply directly to the family courts for superannuation information held by the Australian Taxation Office (ATO). You can then use the information from the ATO to seek up-to-date superannuation information from the trustee of the superannuation interest.

For more on how to request information from the ATO, visit the FCFCOA Visibility of superannuation page, or the FCWA Superannuation page if you are in WA.

The information a trustee provides about a superannuation interest will depend on the type of interest. Generally it will include information about the value of the superannuation interest, or information to help calculate the value, along with other information that will help when considering whether to split the superannuation.

The superannuation trustee may charge a fee for information that has been requested. Usually a party will not be able to get the information until they have paid the fee.

The way a superannuation interest is valued will depend on the type of interest. 
For accumulation interests, the most common type, a recent statement issued by the superannuation trustee (the superannuation fund) will include the account balance as a dollar amount. This is the value of the interest. 
Other types of interests are more complex to value, and may need to be valued by an expert. These include:

• defined benefit interests
• partially vested accumulation interests
• interests in self-managed superannuation funds
• other less common types of superannuation interests.

For more on this, go to Valuing superannuation – defined benefit interests.

If parties agree to split superannuation, they will need to formalise this with a superannuation agreement or consent orders.

If parties cannot reach an agreement, the family courts may make a superannuation splitting order. They may make this alongside other property orders.

Superannuation agreements

A superannuation agreement is a formal document setting out how superannuation will be divided between the parties. The superannuation splitting laws set out what it must specify to operate effectively. For a superannuation agreement to be legally binding, each party must receive independent legal advice before signing the agreement.

Consent orders

If parties have agreed on how to deal with superannuation and want to formalise their agreement to make it legally binding, they can apply for consent orders from the family courts.

To find out more, visit the FCFCOA How do I apply for consent orders? page, or the FCWA Consent orders page if you are in WA.

Court orders

If parties are unable to agree, they can ask the family courts to decide how their property, including superannuation, should be split.

For more on court orders, visit the FCFCOA How do I apply for property and financial orders? page, or the FCWA Property and financial page if you are in WA.

Options for how superannuation is to be split

Superannuation agreements and court orders can split superannuation in either one of 2 ways:

• by allocating a dollar figure, known as the base amount, to the non-member spouse
• by specifying a percentage in relation to the superannuation interest.

The trustee of the superannuation interest then uses the dollar figure or percentage to calculate how much the non-member spouse is entitled to as a result of the superannuation agreement or court order.

If the member spouse is nearing retirement, and parties have not yet reached an agreement about what to do with the superannuation, it is possible to ‘flag’ payments from a superannuation interest under a superannuation agreement or court order.  This prevents the trustee making any payments from the interest to the member spouse until the flag has been lifted. The flag is lifted once a further agreement or orders are made setting out how the payments from the interest are to be split.

A superannuation agreement or court orders will only be legally binding on the trustee if the trustee has been ‘accorded procedural fairness’. Procedural fairness requires the trustee to be given notice of what is proposed in the agreement or orders.

Procedural fairness for superannuation agreements

A copy of a superannuation agreement must be served on (given to) the trustee of the superannuation fund as soon as possible after it has been made, and after a separation declaration has been made (if applicable).

Procedural fairness for court orders

Where parties intend to seek consent orders, a copy of the proposed consent orders that parties have agreed on must be sent to the trustee at least 28 days before they are filed with the court. If the trustee does not object to the proposed orders within 28 days of receiving them, the parties may file the consent orders with the court.

Where parties cannot agree and intend to seek superannuation splitting orders from the court, a party must also notify the trustee in writing, at least 28 days before the first day of the trial, of the following:

• the superannuation splitting orders that the party will be seeking from the court
• the date of the trial.

Once the court has made the orders (either consent orders or orders made after a hearing), the parties must serve (give) the trustee a sealed copy of the orders.

A superannuation agreement becomes ‘operative’, or takes effect, at the beginning of the fourth business day after the day on which a copy of the agreement has been served on (given to) the trustee.

Court orders to split superannuation become operative at the time stated by the court in the orders. This is usually the beginning of the fourth business day after the day on which a copy of the orders has been served on (given to) the trustee, but it doesn’t have to be.

What happens next depends on the type of superannuation interest.

Superannuation splitting for accumulation interests and some pensions

When a superannuation agreement or court orders are made for an accumulation interest or for some types of pensions that have an account balance, the trustee will deduct the amount stated in the agreement or orders from the member spouse’s superannuation interest. The trustee is required to do this under other superannuation laws outside of family law legislation, and is required to do this even when the member spouse has not yet reached a condition of release, such as retirement.

The trustee of the superannuation interest will ask the non-member spouse whether they would like to have the amount put in a new superannuation interest with the same trustee, or ‘rolled out’ (transferred) into another superannuation fund (with another trustee) of their choice.

The amount rolled over to the non-member spouse is still superannuation, and the non-member spouse can only access that money once they reach a condition of release, which is usually when they retire from paid work.

Once the trustee has taken these steps, the superannuation agreement or court orders no longer have effect, and the trustee does not need to take any further steps.

Superannuation splitting for defined benefit interests

Interest splitting for some defined benefit interests

The family law superannuation splitting legislation provides that only splittable payments from a superannuation interest can be split.

Some defined benefit interest trustees have chosen to establish fund rules which allow them to split the member spouse’s superannuation interest immediately after receiving a superannuation agreement or court orders, rather than having to wait until the member starts receiving splittable payments.

Under these rules, depending on the superannuation plan, the trustee may create a new defined benefit interest for the non-member spouse, or roll out (transfer) an amount to another superannuation trustee of the non-member spouse’s choosing.

Many large defined benefit trustees have chosen to put these rules in place. These rules are known as interest splitting. Interest splitting lets the non-member spouse access their entitlements independently of the member spouse.

Once the trustee has taken these steps, the superannuation agreement or court orders no longer have effect, and the trustee does not need to take any further steps.

Payment splitting for defined benefit interests

For defined benefit interests that do not have interest splitting rules in place, the trustee does not need to do anything before the member spouse retires.

After receiving a superannuation agreement or court orders for a defined benefit interest where no interest splitting is available, the trustee must wait until the member spouse reaches a condition of release. Usually this is when they retire from paid work.

Once a splittable payment is to be made to the member spouse, the trustee will pay a certain amount of it to the non-member spouse (calculated using the family law superannuation splitting legislation). How much the non-member spouse receives from each splittable payment will depend on what the superannuation agreement or court orders say. Each splittable payment to the member spouse will continue to be split as calculated by the trustee using the family law superannuation splitting legislation.

Superannuation splitting for interests in self-managed superannuation funds

Superannuation agreements or orders can also deal with interests in self-managed superannuation funds (SMSFs). SMSF trustees (who are also usually the members of the fund) are responsible for ensuring the SMSF complies with a superannuation agreement or court orders.

Accessing superannuation after implementing a superannuation agreement or court orders

Once a non-member spouse receives their entitlement from a superannuation agreement or court orders, they can only access the entitlement once they reach a condition of release, as is the case for all superannuation. For most people, this will be when they retire from paid work.

Trustee fees

A trustee may charge reasonable fees for the administrative costs of doing anything in relation to a superannuation agreement or court orders. When doing something that relates to implementing an agreement or orders, any fees are normally charged to the non-member spouse. When responding to a request for information about a superannuation interest, any fees are charged to the person requesting the information.