How is Superannuation dealt with in Family Law?

Superannuation is a type of ‘property’ which can be divided or ‘split’ between couples (married or de facto) when they separate.

When a couple separates and divides their assets, the Court considers all the contributions of each person to the pool of assets, including superannuation. Judges have a lot of discretion in how to divide a couple’s superannuation beyond mere monetary contributions where they feel it necessary to achieve a just and equitable outcome.

Superannuation can either be considered alongside the other assets in the ‘pool’ for distribution (often called a ‘global approach’); or in a separate pool. It is not necessary to split superannuation interests if an adjustment can be made by other (non-superannuation) assets.

The global approach is common where the parties’ superannuation interests are both in the growth phase. The balance sheet will include the superannuation interests of the parties in the net assets for distribution between the parties to the effect that the percentage outcome will include the superannuation.

The drafting of a splitting order or agreement is critical to its acceptance by the Trustee of the superannuation fund and to its enforceability by the Court.

A separate pool approach might be adopted where there is superannuation in the payment phase, via a pension; where one party has a much larger superannuation interest contributed prior to the relationship, or in circumstances where the superannuation interest can be commuted in whole or in part. In such a case there would be a percentage apportioned from the non-super pool; say 50 per cent / 50 per cent, then a further percentage adjustment of the super pool, say 70 per cent / 30 per cent.

However, a superannuation split can only occur with a Court Order (either by consent or judicial determination); or as a result of a Financial Agreement.

The drafting of a splitting order or agreement is critical to its acceptance by the Trustee of the superannuation fund and to its enforceability by the Court. It is essential that the Trustee of the fund is provided with notice of the proposed wording of the splitting order or agreement to provide their approval; this is known as procedural fairness. The splitting order or agreement will not be valid without the consent of the Trustee of the relevant fund.

If you are seeking advice about a superannuation splitting order or agreement, we highly recommend you seek specialist legal advice from the team at Streeterlaw. Contact us on 8197 0105 or email advice@streeterlaw.com.au.