Can Superannuation Be Split Before Divorce in Australia?

You do not need to be divorced to split superannuation, and waiting for a divorce can waste the window that already exists. Super can be dealt with as part of property orders made before any divorce application.

This page explains the two pathways for splitting, the role of the trustee, when flagging helps and the drafting points that cause the most rejections.

The two pathways

Married couples can obtain property and superannuation orders before divorce. Divorce is not a precondition. The time limit is 12 months after a divorce order takes effect (s 44(3)). De facto couples have 2 years from separation (s 44(5)). Those limits apply to consent orders as well as contested orders.

Superannuation is treated as property and can be split by court order, including consent orders, or by a superannuation agreement within a financial agreement, under Part VIIIB of the Family Law Act 1975. The choice depends on whether the parties want a court order or a private agreement, and whether the fund requires a particular form.

The trustee of the fund must be given procedural fairness notice of proposed splitting orders before they are made. That notice allows the trustee to be heard and ensures the order is workable from the fund’s perspective. Failing to serve the trustee is a common reason for delay or refusal.

A flagging order stops payment splits being made until the flag is lifted. It is useful when the value is uncertain or the member is near retirement and the parties want to preserve the status quo while a valuation is obtained.

Operative time and drafting pitfalls

The split takes effect from an operative time set by the order or agreement. Drafting must identify the correct fund, the correct interest or account, the base amount or percentage and the operative time. Those details must match the fund’s records, not just the parties’ understanding of the fund name.

Pitfalls include splitting a defined benefit interest without a valuation, naming the wrong fund or interest, and failing to serve the trustee. A defined benefit interest in particular requires an actuarial value, and the wrong description can make the order unworkable.

Example

A couple separated 8 months ago and are not yet eligible to apply for divorce. They want consent orders now that include a percentage split of an industry super fund. Because divorce is not required, they can file consent orders that include a splitting order under Part VIIIB. The draft identifies the fund by its legal name, the member’s interest, a percentage split and an operative time tied to the order, and the trustee is served with procedural fairness notice before the order is made. If they had described the fund only as “my super” or failed to serve the trustee, the order would likely be returned for correction.

See Also

• Superannuation splitting in Queensland
• Superannuation splitting on divorce
• When does the property settlement clock start?

This page provides general legal information only; it is not personal legal advice. Everyone’s situation is different, so please seek independent legal advice for your own circumstances.