The short answer – yes! Your former partner could access your super after separation. This is known as a ‘superannuation split’.
The purpose of this post is to provide some background and guidance about how a superannuation split works.
How is super treated in family law?
Before 2002 the law did not allow separated couples to access each others super as part of a property settlement. Why? Because super was not considered an asset that could be divided.
For many separated couples, this resulted in an unfair outcome. For example, one received all the cash assets (because they had no super) and the other retained only super. In other cases where there were no cash assets, and only one had super, then the one with minimal to no super, would be left with very little.
The Family Law Courts recognised the unfairness and from 2002 super was treated as an asset for married couples. From 2009, the Courts also recognised super as an asset for de facto couples.
However, the treatment of super differs from other assets like the family home because it is held in a trust of a superannuation fund.
The new laws enabled the Courts to make orders allowing the transfer of super from one spouse’s superannuation fund to the superannuation fund of the other spouse (otherwise known as a ‘superannuation split’).
A superannuation split does not convert it into a cash asset – it is still subject to superannuation laws (i.e. retained until retirement ages are reached).
So, how does a superannuation split work?
In most cases, separated couples will reach an agreement about how their assets, including super, will be divided.
That agreement is then documented in Consent Orders and filed in the Court. If no agreement can be reached, parties will need to initiate Court Litigation. A Judge would then order a superannuation split.
– John and Mary Smith were married for 25 years.
– They have 3 children together and all of them are now over the age of 18.
– Mary cared for the children when they were younger while John continued to work full-time. As the children got older, Mary returned to work part-time and is now working full-time.
– John and Mary jointly own a family home to the value of $650,000.
– John has super with A Superannuation Fund of $600,000.
– Mary has super of $50,000 with B Superannuation Fund.
– The total assets of the relationship (including their superannuation) to be divided are $1.3 million.
– John and Mary each receive advice from a family law solicitor about their entitlements and property settlement options. They agree to divide the total assets 50/50.
– John and Mary will each retain assets of $650,000. To achieve this:
– the equity in the family home will be split 50/50. It will be up to them as to whether one of them retains the home and pays the other out or the home is sold, and proceeds divided.
– Mary will receive a superannuation split in the amount of $275,000 from John’s A Superannuation Fund to Mary’s B Superannuation Fund. So they each retain $325,000 in super.
For the superannuation split to be carried out, John and Mary must instruct their solicitors to draft Consent Orders and once agreed, execute and file them in the Court.
Would you like further information?
By Tegan Martens, Principal Family Lawyer
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based on your particular circumstances.