Australian superannuation laws apply to both married and de facto couples, including same sex couples. Superannuation is treated just like any other asset in a marriage or de facto relationship. When a couple separates, superannuation can be divided up and shared between the separating parties.
Separating couples can choose to “split” their superannuation entitlements as part of a property settlement package. The superannuation splitting law enables separating couples to value their superannuation and split superannuation entitlements between them. For example, if one of you has superannuation of $100,000 and the other has superannuation of $50,000, it is possible to equalise your superannuation entitlements so that you both end up with $75,000 in your respective superannuation funds (this could be any other dollar amount agreed by you and your former partner).
Splitting does not convert superannuation into a cash asset – it is still subject to superannuation laws (for example, it is usually retained until retirement age is reached). Splitting superannuation will generally mean that one portion is rolled over to another account in the same super fund in the name of the “non-member spouse”, or that it is transferred to another super fund altogether.
If the separation is amicable, couples can negotiate around the amount in the super fund, treating the value of the fund as an amount that can be balanced against other assets to enable, for example, one person to stay in the family home.
If the break-up is not amicable and requires the involvement of lawyers and the Family Court, the Court can order that all assets, including superannuation, be distributed in a particular manner. The division may not always be 50/50, as the law stipulates that contributions of a non-financial nature, such as those made in the capacity of home maker or parent, are always taken into account, as well the future income earning ability of both parties. Therefore, it does not matter if, for example, one partner was the sole financial contributor to the superannuation fund.
Parties wanting to find out more about their partner’s superannuation can get information from the fund’s trustees. The Family Court has a “superannuation information request” form to help with enquiries.
The Family Court treats marriage and de facto relationships as a socio economic partnership. The longer a relationship lasts, the less weight the Court will give to whoever brought the property into the relationship. Couples should be aware that this approach can be quite at odds with the intention of couples who are not in a traditional relationship and where it may be more a case of “what I have is mine and what you have is yours.”
The division of property and superannuation assets is often a complex and challenging area of law. It is advisable for separating couples to seek legal advice before proceeding with a settlement.
Heterosexual and same-sex de facto couples may also wish to consider seeking legal advice to ensure that they are fully aware of their legal rights and obligations, as well as the potential impact that living together may have on their financial circumstances in the future.