Separation and super
Since superannuation forms one of a couple’s biggest assets, splitting superannuation after a separation can be a complex process.
Superannuation is treated as property under the Family Law Act 1975 (Cth). Once a relationship ends, superannuation can either by split by agreement or court order. Generally, parties will try to negotiate an agreement between themselves before filing for a court order.
A ‘superannuation agreement’ can be reached by both parties involved which sets out how the super is to be split. If an agreement cannot be reached then the court can determine the settlement.
When negotiating an agreement, here are some approaches for splitting super:
- One party may receive their ex-partner’s super as part of their settlement.
- One party may receive more super and less of the other assets such as the family home.
- In situations where one party has super and the other has little or none, the super may be split 50/50 along with the other assets.
If both parties do come to an agreement then the parties must formally record that agreement by way of Consent Orders through the court or by entering into a Binding Financial Agreement.
Failure to formally record the agreement may put both parties at risk that their former spouse or partner may make a further claim against their assets, such as super, in the future.