Super is one of the most valuable assets you can accumulate in your lifetime. After a separation, your super is generally counted as part of your total assets. It's usually included when dividing property between you and your former partner. This applies whether you were married or in a de facto relationship.
How is super split if you separate or divorce?
Super splitting laws allow most super fund accounts or super pension or annuity payments to be split.
This can occur in either of the following ways:
- By agreement between the parties, known as a ‘Superannuation Agreement’
- By court order (with or without the parties’ consent).
Once it’s finalised, the Superannuation Agreement or court order specifies how the super interest is to be split between the parties. The super fund trustee is then required to implement it.
It’s important to note that you may not be able to split some super interests or payments, including:
- certain low balance accounts of less than $10,000
- pension or annuity payments of less than $4000 per year
- compassionate grounds or hardship payments
- some death benefit payments.
The rules can be complex, so it’s best to check with your super fund first and consider getting legal advice from a family lawyer.
Get legal help
A family lawyer can explain how super laws apply to your individual circumstances, as well as your rights and responsibilities. More specifically, they can:
- draft agreements, consent orders and court applications
- provide written confirmation that you’ve received independent legal advice (this is a necessary step when you enter into a Superannuation Agreement).
A family lawyer may also be able to help parties reach agreement without going to court.
Community legal centres and Legal Aid agencies offer free legal advice to people who meet certain eligibility requirements. These are available in every state and territory.
The Australian Government provides a useful web page to find out more about the laws surrounding splitting super.
Seek expert financial advice
You can find out more about the practical, legal and financial considerations surrounding separation and divorce from Moneysmart. This Government website also includes a financial checklist.
If you’re an AustralianSuper member, you can meet with a qualified financial adviser to help you make informed decisions about your super. This can be either face to face or via a secure video link from home.1
Financial advice optionsSteps to split your super
Your super isn’t automatically split after a separation or divorce. The super fund trustee will only act once they’ve received a certified copy of either:
- the final Superannuation Agreement, accompanying divorce order or separation declaration, and certificates of independent legal advice for each party
- a final Family Court Order. This can either be a ‘consent order’, where the parties have agreed to its terms, or a court order where the Family Court decides the terms.
These documents are usually prepared by you and your lawyer together.
Here are the steps to follow if you’re dealing with AustralianSuper.
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Step 1: Find out your ex-partner’s super balance
To negotiate a fair split, you’ll need to find out your ex-partner’s super balance.
If your ex-partner is a member of AustralianSuper you have two options:
- complete the Request family law information form and upload it to our website. Alternatively, you can return the form to the postal address included on the form.
- complete and upload to our website the form in the Federal Circuit and Family Court of Australia (FCFCOA) Superannuation Information Kit. (Parties in Western Australia should use the form in the Family Court Western Australia (FCWA) Superannuation Information Kit).
If your ex-partner isn’t a member of AustralianSuper, you’ll need to contact their super fund or funds and complete the form they provide. Alternatively, you can complete the form in the FCFCOA Superannuation Information Kit. Parties in Western Australia should use the one in the FCWA Superannuation Information Kit.
If you can't get the super balance information you need from your ex-partner’s super fund, the ATO may be able to help. To apply, you or your family lawyer need to submit a Super information request form to the Family Court. If the application is accepted, the ATO will disclose the available information to the court to pass on to you or your lawyer.
When accessing information about a super balance, it’s important to note the following.
- If your ex-partner isn’t a member of AustralianSuper, you may have to pay a fee to their super fund first to find out their super balance.
- Just as you have the right to request information from your ex-partner’s super fund, they have the right to request the same from yours. When the fund does so it is not allowed to disclose your address or contact details or notify you that an application has been received requesting information about your super account.
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Step 2: Prepare a draft Superannuation Agreement or draft consent order
Once the parties have the information they need and agree to make a superannuation split, they’ll need to formalise this in a draft Superannuation Agreement or draft consent order. This document needs to specify which method has been used to calculate the superannuation split amount.
One of the following methods is usually used:
- allocating a dollar figure, known as the ‘base amount’
- specifying a percentage of the interest on the super account.
Draft Superannuation Agreement
This is a formal draft document setting out how superannuation will be divided between the parties. Either you or your lawyer can draw it up as part of a broader financial agreement covering the division of other property held by the parties.
For it to be legally binding, each party must receive independent legal advice before signing the agreement.
Draft consent order
You or your lawyers can draft a proposed ‘consent order’ that sets out the terms for the agreed superannuation split. To be legally binding, it needs to be formalised by the Family Court.
Draft court order
If the parties can’t reach an agreement about how to split their super, the FCFCOA or FCWA can make a superannuation splitting order. This is also usually prepared in draft first and provided to the trustee for review.
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Step 3: Provide the draft Superannuation Agreement or draft consent or court orders to the trustee
You or your lawyer provide one of the following documents to the trustee for review:
- draft Superannuation Agreement (and supporting documents)
- draft consent order
- draft court order.
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Step 4: Trustee issues ‘no objection’ letter
Once the trustee is comfortable they can comply with the terms of the draft Superannuation Agreement, consent orders or court orders, they will issue a ‘no objection’ letter.
Sometimes the trustee may need to request changes to the draft before they can issue a ‘no objection’ letter. The trustee will communicate the required changes to the parties (or their family lawyers).
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Step 5: Final Superannuation Agreement or court order submitted to trustee
When the Superannuation Agreement (and supporting documents), consent order or court order is finalised, and a certified copy is submitted to the trustee, the super split can be implemented.
It's important to provide a certified copy of these documents to AustralianSuper. Refer to the Proof of your identity fact sheet for information on how to have your documents certified.
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Step 6: Trustee implements the split and issues a ‘split notice’ letter
The trustee issues a ‘split notice’ letter to both parties, once they've received the details of the person receiving the super split, as well as:
a certified copy of the final Superannuation Agreement (and supporting documents), or final consent order, or final court order.
The letter includes information about the base amount or percentage to be split, as reflected in the final agreement or final order. It also requests instructions from the person receiving the payment on where the super split amount should be sent or paid.
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Step 7: Payment instructions to the trustee
The person receiving the payment provides instructions to the trustee on how the super splitting payment should be processed. This is done at AustralianSuper by completing and uploading the Apply for payment (family law) form to the trustee with the requested ID documents.
- The receiving partner is a member of AustralianSuper: They can choose the split amount to be deposited into their existing AustralianSuper account.
- The receiving partner isn’t a member of AustralianSuper or has an alternative super fund: They can choose to set up a new Personal Plan account with AustralianSuper, or request for it to be split to a super fund of their choice.
If the person receiving the payment doesn’t provide instructions within the legislated timeframe, the trustee will pay the amount to their existing AustralianSuper account (if they have one), or an AustralianSuper Personal Plan account will be set up for the split amount to be processed into.
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Step 8: Trustee finalises split
Once the superannuation split has been finalised and processed, the trustee issues a notice to both parties confirming the final payment.
Conditions on the split amount
Regardless of where the split amount is processed to, it must remain in the super system unless the receiving party satisfies a ‘condition of release’ such as:
- you’ve turned 65
- you've turned 60 and have permanently retired or stopped working for an employer
- you're experiencing severe financial hardship
- you have unrestricted non-preserved benefits.
Other financial impacts of a super split
When you come to splitting your super with your ex-partner, you may incur fees, and there will likely be other impacts to your super or pension. For example:
- Fees: Some funds may charge fees associated with a super split and you should check with them before proceeding. Note that AustralianSuper doesn't charge fees for providing information about a super account or implementing a super split.
- Reduced retirement savings: If an amount is transferred out of your super account, you’ll have less super in that account to help fund your retirement. Also, because super is generally invested over time, any amount transferred out of your account will no longer earn investment returns in that account.
- Impacts on pensions: Super income streams may be changed or split depending on fund rules and tax settings. Government Age Pension entitlements may be affected by income and/or assets test outcomes. It’s recommended that you check Services Australia or seek financial advice.
- Impacts on insurance arrangements within your super: If a split changes your super account, fund or balance, any insurance held through super could change or end. It's recommended that you contact your fund to get more information.
It’s also worth considering the potential impacts of obtaining legal and financial advice to inform the super-splitting process with your ex-partner. Unlike the fees and costs listed above these amounts can’t be drawn from super.
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Reviewing and rebuilding your super
Further help
Information and support are available to help you understand and cope with the difficulties of going through a separation or divorce.
Depending on where you live, you can visit fcfcoa.gov.au or familycourt.wa.gov.au for information on how to:
- apply for divorce
- get legal advice
- deal with property and money
- make arrangements for children during and after separation.
Family Relationships Australia is the government’s main resource about family relationship issues, including separation and divorce. Visit familyrelationships.gov.au to access information and links to services including:
- legal and financial advice
- family mediation
- dispute resolution.
To access information on government support for separated parents, visit Services Australia at servicesaustralia.gov.au
Women’s information and referral services are available in each state and territory. They provide free and confidential support, referrals, information and advice on the financial impact of separation and divorce.
Seeking financial advice
Consider speaking to a financial adviser to help you make informed decisions about your super.1
Your advice options-
Disclaimers
- Personal advice is given by a separate legal entity, not by AustralianSuper Pty Ltd. Some personal advice may incur a fee, which will be disclosed before any work is completed. Subject to meeting eligibility criteria, fees for advice about your AustralianSuper account may be deducted from your account with your consent.