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? And can you please explain how super should be treated when a divorce happens, because it has been very difficult to find any information about this topic.
A: You ask two questions about divorce and super:
- After divorce, does my share of super need to be transferred to another super fund, or can I withdraw the super as cash?
- What happens to super benefits after divorce?
1. After divorce, does my share of super need to be transferred to another super fund, or can I withdraw the super as cash?
The short answer to your first question regarding accessing super is: preserved super benefits remain in the superannuation system unless the individual entitled to the benefit has satisfied a condition of release. If you have not satisfied a condition of release, then you cannot access your super benefits.
Common conditions of release: are retiring AFTER you have reached preservation age (see explanation in next paragraph), 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.
Your preservation age is the age at which you can access your super benefits, assuming you have retired from the workforce. If you were born before July 1960, your preservation age is 55. If you were born after June 1964, your preservation age is 60. If you were born on a date that falls within the time frame from July 1960 through to June 1964, then your preservation age may be 56, 57,58 or 59 years, depending on your date of birth. For more information on preservation age see SuperGuide article What age can you access your super (Preservation Age)?
For more general information on accessing super benefits early, see SuperGuide article Accessing super early: 14 legal ways to withdraw your super benefits.
2. What happens to super benefits after a divorce?
The answer to your second question, that is, what happens to super benefits when a couple divorce or separate is a more involved discussion.
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.
Generally speaking, if a marriage or de facto relationship (heterosexual or same sex) 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 can be paid (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 the super fund rules allow this) or transfer the interest into another super fund. If you’re both members of the same SMSF, the likely option is that one member will transfer his or her benefits into another SMSF, or into a large commercial 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 interests while waiting for a key event to occur, such as impending retirement, or where the valuation of an asset (if members of a SMSF) is finalised. 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.
Note: In Western Australia, the superannuation benefit of a person involved in a heterosexual or same-sex de facto relationship cannot be split. Instead the super benefit is treated as a resource of the relationship, that is, the super benefit is taken into account when looking at how all of the assets will be divided between the couple.
Excluding de facto couples in WA, 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 (usually worked out using a base amount or percentage amount valuation method)
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 a superannuation agreement relating to superannuation benefits, if the agreement is to be binding on the trustees of the superannuation fund.
The separating couple can also seek a consent order from the Family Court (if they agree on the settlement), or a court order (if they don’t agree on how the super is to be divided).
Note: If you run an SMSF and you’re separating from your spouse, then your situation is more complicated especially if your ex-spouse is also a trustee of the SMSF. Seek advice immediately about how your SMSF can continue into the future. If you are transferring super benefits to another super fund remember that SMSFs enjoy CGT-exempt treatment on assets transferred to another SMSF upon divorce or separation.
For more information on what happens to your super benefits when you divorce or separate see the following resources:
- The Australian Tax Office website briefly explains the super rules and divorce
- You can also find information on this topic on the Family Law Courts website
- The most comprehensive information on this topic can be found on the Attorney General’s website