Although superannuation usually cannot be accessed until retirement, it is important for separating couples to remember that superannuation is considered by the Family Law Act as property available for division between parties.[1]

Unless there are specific reasons not to do so, it is commonplace for superannuation to be equalised between parties upon separation. There are circumstances where superannuation will not be split equally between the parties, such as where the relationship was only very short or where one party had accumulated a significant amount of their superannuation prior to the commencement of the relationship or after separation.

Where a separation is amicable and the separating parties agree on a superannuation split, whether it is to be an equalisation or otherwise, they can either sign a Binding Financial Agreement or Consent Orders to be filed with the court in order to effect the split.

Where parties do not agree on how their superannuation is to be split, an application must be made to the court for a decision as to an appropriate split. As with other types of property, the court can only make orders that are just and equitable when splitting superannuation.[2] The court does not have to order a superannuation split where it is not just and equitable to do so.

In the case of C & C [2005] FamCA 429 (2 June 2005), the court considered that the preferred approach when considering a superannuation split was to prepare a pool of the parties’ non-superannuation property and then a separate pool of the parties’ superannuation entitlements before considering how it is to be split.[3]

The court in C & C then determined  that it must consider contributions made by each party towards the superannuation interest before determining the appropriate split. This is because courts recognise that superannuation earned during the course of a marriage or de facto relationship is property earned as the result of the contributions of both parties, even where there may be a substantial disparity between the superannuation in each party’s name.

The court needs to consider contributions made by each party and other factors in section 75(2) of the Family Law Act.

The length of time before settlement and retirement, that is eligibility to claim the amount of superannuation, might militate in favour of an equalisation of superannuation, rather than treating the superannuation in the same way as the non-superannuation property.

Superannuation can either be split either as a specific dollar amount (base amount) or as a percentage of the balance of the party’s superannuation fund. It is important to note that where there is a superannuation split, the superannuation does not convert into a cash asset but is rolled over from one party’s superannuation fund into the other’s. Sometimes it is necessary to obtain an actuarial valuation of the superannuation interest, for example, for Defined Benefit Plans held by a party.

It is important to get advice on the issue from an accredited specialist in family law to ensure your rights are protected. Please contact Rowan Skinner and Associates Lawyers to book an appointment if you feel you need advice.

[1] Family Law Act 1975, Part VIIIB

[2] Family Law Act 1975, section 79.

[3] C & C [2005] FamCA 429 (2 June 2005) at 63.