Q: I am at the end of a divorce/property settlement. My ex has agreed to give me my share of his super. Does this have to go into a superannuation fund or can he transfer it to me in some other way?
A: The short answer to your question is, that preserved super benefits remain in the superannuation system unless the individual entitled to the benefit has satisfied a condition of release. Common conditions of release: are retiring after the age of 55, or turning 65 or starting a transition-to-retirement pension. Depending on the rules of a superannuation fund, another condition of release may be accessing super due to severe financial hardship.
According to the ATO, The Family Law Act 1975 and the Superannuation Industry (Supervision) Act 1993 (SISA) allow an interest in superannuation or a super payment to be divided or split by agreement or court order in the event of a relationship breakdown.
The rules relating to dividing superannuation assets in the event of a relationship breakdown or divorce are complex and chatting to a family lawyer about the rules and your entitlements is a must. Even where the divorce is amicable, the super laws require each party to get independent advice before signing an agreement relating to superannuation benefits, if the agreement is to be binding on the trustees of the superannuation fund.
Generally speaking, if a marriage dissolves, the couple involved have 3 options when deciding what happens to superannuation benefits. You can:
- Split a superannuation interest (typically a member’s superannuation account) into two benefits via a ‘payment split’ or an ‘interest split’. A payment split means that the super account will be split when it becomes payable (that is, a condition of release is satisfied, such as retirement). More typically, an interest split will be used, which means both parties receive a superannuation interest. The ex-spouse receiving the new benefit can leave the super interest in the same fund (if super fund rules allow this), or transfer the interest into another super fund.
- Flag the benefit and defer decision until another time. By flagging the super benefit, this allows a couple to protect each of their interest while waiting for a key event to occur, such as impending retirement. Upon this key event the exact value of the benefit will be known and the trustee of the super fund can then deal with the super account according to a later agreement made by the couple.
- Take super into account, but leave untouched. In the past, superannuation was treated as a financial resource rather than an asset of the marriage. Couples can choose to continue taking this approach, and divvy up other assets of the marriage/ relationship to take into consideration the value of the super account rather than splitting a superannuation benefit.
The most common approach is to agree to an ‘interest split’. Typically, the steps involved in splitting superannuation benefits are:
- Request information about spouse’s super from super fund
- Value the superannuation benefit
- Reach an agreement, or if you can’t agree, then apply for a court order
- Send a copy of agreement or order to super fund trustee
- Split the super benefit
The Australian Tax Office website briefly explains the super rules and divorce (see this link) but the most comprehensive information on this topic can be found on the Attorney General’s website (see this link).
According to the Attorney General’s website, the superannuation splitting laws enable couples (married, de facto heterosexual, or de facto same sex) to split their superannuation in a family law property settlement on relationship breakdown.
Quoting directly from the Attorney General’s website:
The laws apply to:
- married (or formerly) married couples, and
- de facto couples, in most States and Territories, whose relationship broke down on or after 1 March 2009 (and South Australian de facto couples, where their relationship broke down on or after 1 July 2010).
The laws do not apply to de facto couples in Western Australia.
The laws apply to de facto couples as part of the new property settlement regime for de facto couples under the Family Law Act 1975 (the Family Law Act), which commenced in 2009. The new regime only applies to de facto couples whose relationship had a geographical connection with New South Wales, Victoria, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory, Norfolk Island, Christmas Island, the Cocos (Keeling) Islands or, from 1 July 2010, South Australia.
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