The Family Law Act 1975 (Cth) allows for the division of certain superannuation interests between parties to a marriage or de facto relationship.
Before making the financial decision to divide your superannuation assets with your partner, it is important that you are aware of the process of how to split superannuation, and what is involved in carrying out each step.
In this article, we’ll help break down the complex process of splitting superannuation with your partner in the event of a relationship breakdown.
We’ll help break down the complex process of splitting superannuation with your partner in the event of a relationship breakdown
Step 1: Obtaining information about a superannuation interest
To begin the super splitting process, parties will generally require a valuation of their own super account or their partner’s super account. This can be done simply by referring to the balance on each of your superannuation statements.
If you are unable to communicate with your former spouse or partner directly, the Federal Circuit Court provides a Superannuation Information Kit which you can fill out and send to the trustee of a superannuation fund to request the relevant information. If you are a member of a defined benefit scheme, you may also need to apply for a valuation of your super entitlements using the forms included in the kit.
The kit includes a Form 6 Declaration, a Superannuation Information Request Form and a Superannuation Information Form.
To access the forms, you must either be –
- The member of a superannuation plan;
- The spouse of a member; or
- A person who intends to enter into a super agreement with the member
Depending on the superannuation fund, you may be required to pay an accompanying fee to obtain the relevant information. The application for information is private and confidential, and the trustee cannot disclose it to anyone without your consent.
Step 2: Distribution of property by agreement or court order
Once you have obtained the requested information from your superannuation fund, you can then determine if and how you would like to split your superannuation interests.
Separating couples have the option to formalise their intentions either by way of a superannuation agreement or court order.
A Superannuation Agreement is a written agreement that complies with Part VIIIB of the Family Law Act. It forms part of a broader Binding Financial Agreement and is entered into following the breakdown of a relationship.
Download Professionally drafted Superannuation Splitting Agreements – click here
Superannuation agreements will be binding if they comply with the requirements of the Family Law Act. We outlined these formal requirements in our most recent article – Super Splitting: An Overview
Please note that the remainder of this guide will address the super splitting process by way of agreement. Please visit the Family Court of Australia’s website if you’d like more information about applying for a court order.
Step 3: Notifying your superannuation fund trustee
Before finalising your super agreement, you must write to the trustee of your superannuation fund to let them know you intend to divide your superannuation assets with your partner. This process is known as seeking ‘procedural fairness’.
The procedural fairness process provides the trustee with an opportunity to object to the agreement if it fails to satisfy their legal requirements. Therefore, when writing to the trustee, you must ensure to attach a draft of your agreement. The trustee will then respond to confirm whether the terms are acceptable or need amending.
An agreement is voidable at law if the trustee does not receive reasonable notice of its terms. This means that the agreement is valid until it is set aside by a relevant court.
Step 4: Splitting the super
Once the binding superannuation agreement is served on the trustee of the superannuation fund, the trustee is required to give effect to it by law.
The agreement will direct the trustee to pay an amount, or a percentage, of the member’s superannuation to the non-member spouse.
The trustee will then serve a payment split notice to both parties within 28 days, advising that the member’s interest is subject to a split. Both parties will also receive a confirmation once the split has occurred.
Our range of Binding Financial Agreements
At RP Emery & Associates, we provide quality financial agreement kits and a unique legal review package to help you reach an amicable arrangement with your spouse or partner.
We have been helping couples make Financial Agreements since 2009 and we have a wealth of experience in helping you split super assets.
Our professionally drafted Binding Financial Agreement kit includes –
- A Binding Financial Agreement template, which includes a s90XH Superannuation Agreement (provided to you as an easy to edit MS Word Document)
- Plain English instruction guide
- Sample agreement
- Friendly customer support
- and a bonus Last Will and Testament
Learn more about Superannuation Splitting Agreements for industry or SMSF or Learn about the Legal Review Service.
