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In 1983, the Australian Government introduced the compulsory superannuation scheme. Since then, employers have been obligated to pay on behalf of the employees, a percentage of their total income into a nominated superannuation fund of the employee.

Note: The minimum amount of superannuation required to be paid by employers is due to increase from 9% to 13%.

Whilst divorce or separation spells the ending of a relationship, it begins the arduous task of sharing your finances with your partner. Superannuation is considered to be an asset, and it may be included in a property settlement.

When a marriage or a de facto relationship breaks down, superannuation can be split through reaching a superannuation agreement. If an agreement cannot be made, you can have the court determine the settlement.

In deciding whether to make a super splitting order, the court takes the following factors into consideration, the:

  • value of Superannuation interest;
  • age and state of health of parties;
  • capacity of the parties for gainful employment;
  • care and control of children;
  • income, earning capacity, assets, liabilities and financial resources of the parties; and
  • nature and accessibility of superannuation entitlements.

The principle of fairness is key to superannuation settlements hence why the courts take into consideration numerous factors that will give them a better picture of each parties’ financial situation. When coming to agreements, some potential approaches can include:

  • one partner may get part of their settlement in the form of their ex-partner’s super;
  • one partner may receive more super now and less of the other assets;
  • where one partner has a super and the other has little or none, the super is likely to be split 50/50 along with the other assets.

You can request information regarding your partner’s super from their fund and if the super is split, then you will have the following choices:

  • add the money to your super account;
  • transfer the super to another fund; or
  • take the super as cash if you are eligible for a cash payment.

Process of Splitting a Super

  1. Request information about the super accounts.

Before deciding how to split the super, you need to find out how much super you both have.

  1. Decide how you will split the super.

The most efficient way to do this, is to prepare a formal written agreement with the aid of a lawyer. This is likely to cover super as well as other family assets. The agreement must be accompanied by a signed certificate stating that both parties’ have taken independent legal advice.

You could seek a consent order if both you and your partner have already agreed to split the super. You can file an application for consent orders through the family courts, together with a consent order recording the agreement.

If you cannot reach an agreement with your former partner, you will need to file an application for a court order. Even when an application has been made, you and your former partner may reach an agreement at any time without the need for a court hearing.