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Divorce is rarely a simple process. Depending on your circumstances, you may need to divide your assets, time with your children and sometimes even your superannuation with your ex-partner. It can be tough to go through this, so we’ve provided some information to help you understand some of the things you may need to consider.

Before we dive in, it’s worth noting that because divorce or separations can be tricky, it’s always a good idea to seek legal and financial advice to understand all your options.

The basics of superannuation splitting laws

Superannuation splitting laws allow superannuation to be divided when a relationship breaks down. These laws apply to both married couples and couples within a de facto relationship.

Under the Family Law Act 1975 (Cth), superannuation is treated as property. However, it differs from other types of property because it’s held in a trust. In addition, splitting superannuation doesn’t convert it to a cash asset, as super monies are still subject to superannuation laws and conditions of release.

For more information about superannuation splitting laws, please visit the Federal Circuit and Family Court of Australia website.

How superannuation is split

There are a few options for separating couples to pursue depending on their specific situation. They can either:

  • Enter into a formal written agreement to split superannuation

    This is where each person obtains independent legal advice and mutually create a formal written agreement. Once an agreement is in place, there is no need to go to court; each person just needs to retain a copy of the agreement for their records.

    It’s worth keeping in mind that these agreements can be drawn up before the relationship commences, during the relationship, or even after it has ended.

  • Seek consent orders to split superannuation

    Consent Orders are generally for those who manage to reach an agreement without having to ask the Courts to make the decisions for them. In this situation, the parties apply to the Court for orders to be made by agreement.

  • Seek a court order to split superannuation

    For former partners who cannot reach an agreement on their own, they have the option to seek help from the Courts through a Court Order. Even if you have already filed an application to a Court, you can still reach an agreement with the other party at any time without proceeding to a Court hearing.

What else you need to consider?

If you’re in a position where you need to consider a binding financial agreement, or consent or Court orders, the following information may help:

  • Find out how much you and your former partner have in superannuation to understand what a fair split might be when dividing your assets. If you don’t have access to information on your former partner’s superannuation fund balance, you can request this via the Family Court.
  • If you don’t have a binding financial agreement in place, you should seek legal advice. You and your former partner’s legal representatives can work together to deliver an outcome that is mutually agreeable to you both. It’s also worth noting that your superannuation split doesn’t necessarily rely solely on how much money you have contributed to the relationship. For example, if your former partner was the primary caregiver and raised children while you were the breadwinner, this may be taken into account. The Courts may also consider the financial position both parties will be in after the division of assets to determine what the split of superannuation funds may be.
  • Once you have reached an agreement, applications to the respective superannuation funds can be made to split funds. Your circumstances will determine whether this can happen immediately or not, and your solicitor can advise on this process.

Need more information?

If you’re looking for more information on what to consider in relation to a superannuation split, please visit the Federal Circuity and Family Court of Australia website.

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This article was previously prepared and published by AIA Australia Limited ABN 79 004 837 861 (AIA Australia) prior to Resolution Life’s acquisition of AIA Australia’s Superannuation & Investment life insurance business on 1 July 2023.

Important information

Resolution Life Australasia Limited ABN 84 079 300 379, AFSL No. 233671 (Resolution Life) is the issuer of this article.

Any advice in this article is provided by Resolution Life and is general advice and does not take into account your objectives, financial situation or needs. Therefore, before acting on this advice, you should consider the appropriateness of the advice having regard to your objectives, financial situation and needs, as well as the relevant product disclosure statement and/or policy document, available from Resolution Life at resolutionlife.com.au or by calling 133 731, before making a decision about the product.

Resolution Life is part of the Resolution Life Group and can be contacted via Contact us - Resolution Life.