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Super forms a part of the overall assets of a marriage or de facto relationship and can be included in a pre-nuptial agreement and/or split as part of a property settlement on divorce or separation.
Can I split my super with my former spouse without going to court or consulting a lawyer?
Generally, no. Super law prevents the Trustee from transferring your super to your former spouse, even with your written consent. The only exception is where your super is unrestricted non-preserved, in which case you may be able to withdraw the amount you wish to split, and your spouse may be able to contribute the amount to a super account in their own name. However, there may be tax implications and your spouse may be prevented from recontributing the amount to super under super law, so we suggest that you seek independent legal or financial advice before you consider this action.
Otherwise, to split your super you must comply with the requirements of the Family Law Act 1975 and Family Law (Superannuation) Regulations 2001. This requires that you enter into a binding financial agreement which complies with the Act and requires both you and your spouse to consult independent legal advice, or you approach the court for an order which instructs the Trustee to split your super.
How to split your super on divorce or separation
The Trustee will generally only be able to split your super where the court order or binding financial agreement meets the Trustee’s requirements and the requirements of the Act.
Requesting information about a super interest from the Trustee
You, or your former spouse, will generally require information about the value of your super interest before entering into a binding financial agreement or proceeding to court. Requesting information about a super interest does not mean that you need to proceed to apply to split that interest; it can be used solely to quantify property of the parties.
‘Eligible persons’ can request information about a super interest from the Trustee. This includes the member and their spouse or former spouse, including a de facto or former de facto spouse in most states. If you are an eligible person who may request information from the Trustee about a super interest, you can make the request by completing the Superannuation Information Kit and Form 6. This form does not need to be completed by a legal professional.
Please send your completed request for information (Form 6) form to: email@example.com.
Obtaining a super payment split by Court Order or Binding Financial Agreement
Step 1: If you propose to split your super as part of a property settlement, you will need to decide whether to enter into a binding financial agreement or proceed to court (where you may be able to obtain consent). This is because different rules apply to each.
Step 2: When drafting a binding financial agreement or consent order, we suggest you follow the Trustee’s guidelines and use the Trustee’s preferred wording. This will reduce the chance that the Trustee will raise any objections in Step 3.
If you are applying for a Court Order, please follow these guidelines:
If you will be entering into a binding financial agreement, please follow these guidelines:
Step 3: You will need to send a draft of the agreement or orders to the Trustee to consider and raise any objections. This process is known as ‘procedural fairness’, and you must provide the Trustee with at least 28-days to consider the wording and raise any objections. This period does not start until the Trustee has all the information required to consider the draft orders or agreement.
Please send your documentation for the Trustee’s consideration to the following address:
GPO Box 2585
BRISBANE QLD 4001
Step 4: If the Trustee raised any objections you must address them, and may be required to provide an updated draft agreement or orders to the Trustee to reconsider.
Step 5: Once the Trustee considers the draft orders or agreement and does not raise any objections within the 28-day period, you may proceed to finalise the agreement or proceed to court.
IMPORTANT: If you do not provide the Trustee with a copy of your proposed orders or agreement or you do not address any objections which the Trustee raises, the Trustee may not be bound by the orders or agreement when finalised.
Step 6: Once the court makes the orders or you finalise and sign the binding financial agreement (in the same format as the draft the Trustee approved), you will need to serve the documents on the Trustee at the above address. The Trustee will not accept final documents via email.
In the case of a binding financial agreement, you must provide a copy of your divorce order or Separation declaration together with a certified copy of the binding financial agreement (with the independent legal advice annexures).
If you obtained a court order, the Trustee will require a final, signed and sealed version of the Orders to be sent to the above address.
Other options under Family Law
The Family Law Act also allows a super interest to be ‘flagged’ to prevent payments being made from it, and for a super interest to be included in a pre-nuptial agreement.
Need more information
Contact the family law courts for information about splitting super:
And contact us if you have any questions about the Trustee’s requirements for splitting a super interest: