Superannuation entitlements are an increasingly large portion of the property pools of separating spouses, due to the federal government’s compulsory superannuation scheme and the tax breaks associated with superannuation contributions.
Under the Family Law Act 1975 (Cth), superannuation is treated as property and can be split (divided) as part of an agreement with your husband or wife upon separation.
At present in Western Australia, superannuation splitting is only available to married persons.
A superannuation split is a transfer of superannuation entitlements from one party to the other. The entitlements remain as superannuation and therefore, generally, they cannot be accessed until the receiving party’s retirement age.
A superannuation splitting order must comply with the formal requirements. If you are proposing a superannuation split in your consent orders it is important that the Trustee of the superannuation fund is served with a copy of the proposed orders before they are filed at the Family Court. The Trustee has 28 days following service to respond to the proposed order.
Upon the Court making your consent orders, it is essential to send a copy of the sealed orders to the superannuation fund to give effect to the superannuation split.
We highly recommend you seek legal advice if you are contemplating superannuation splitting, due to the complexities of drafting the splitting orders and complying with the procedural requirements.