Splitting Superannuation after a Separation

Saving for your retirement should be a priority for all working Australians. Keeping your superannuation in-check helps you maintain and enjoy the same lifestyle after you stop working. That’s why you need to be aware of what can happen to your super entitlements if your relationship breaks down.

Splitting up can be an emotionally and financially tough time. To lend a helping hand, here we have provided a guide with what you need to know about superannuation and separating from your partner:

What happens to my Superannuation if I break up with my Partner?

Divorcing your husband or wife, or leaving your de facto partner you live with could mean you have to divide your assets and debts, whether you held them together or not. This also applies to your superannuation.

Dividing your super can be a complicated process. Seek legal advice early to understand your rights.
Dividing your super can be a complicated process. Seek legal advice early to understand your rights.

After many years of working and putting aside your money for retirement, your super can become one of your most valuable assets, so it’s common for couples not to see eye-to-eye when divvying it up.

If your partner hasn’t contributed to their own super for years, you need to be prepared to make an agreement because they may have the right to claim a certain amount of yours.

How is Super Divided?

Generally, there are three paths you can go down when dividing your super:

1. A Superannuation Agreement: This can be put in place before, during or after your relationship as part of a broader ‘binding financial agreement.’ This document details your superannuation arrangements for when you separate.

If you don’t have a binding financial agreement in place already, you can get one of the following court orders:

2. Consent Orders: If you and your partner establish with how you would like your super to be split, you can apply for a consent order. Your application is filed in court without needing to attend a court hearing. Once the court decides whether it is fair, the agreement is made final.

3. Financial Orders: If you can’t come to an arrangement together, you’ll need to get a financial order. The court will then consider a range of factors to decide how your super will be distributed.

What Factors are considered in Court?

Several things about your relationship and super are considered in court to determine a fair and reasonable settlement including:

  • The value of each person’s superannuation
  • The amount of super held at the start of your relationship
  • Whether you’re retired already
  • Direct and indirect contributions to your super during the relationship
  • Your role and responsibility of being a homemaker or parent
  • The length of your relationship
  • How other assets are being shared

What Else does the Process Involve?

Calculate the Super Value: You may want to find out the value of your partner’s super balance to establish what would be a fair division. You’re able to obtain this information from your partner’s super fund by filling out the Superannuation Information Kit on the Federal Circuit Court of Australia website or visiting your nearest family law registry. Keep in mind you may need to pay a fee for obtaining this information.

Create a Flagging Agreement: Depending on your circumstances with your partner, you may also need a ‘flagging agreement.’ This stops the super fund in question from providing any super payments until the flag is lifted. It can be lifted by mutual understanding or by the court. This process may also require a fee.

When Should I seek Legal Advice?

Working out your superannuation entitlements can be complicated so always get professional, legal advice as soon as possible so you can explore your options. The way your superannuation will be divided largely depends on your personal situation and circumstances of your separation.

At Le Brun & Associates, we recognise that going to court can be a lengthy and expensive process. Our lawyers thoroughly explore all possible avenues to resolve matters before the need for court intervention. We understand that separating from your partner can be an extremely difficult time, that’s why we provide a free 30-minute consultation to assess your needs and options.

Contact our team of family and divorce lawyers today for professional advice and ongoing support.