How do you divide Superannuation in a divorce? Is my partner going to take half?

Many clients ask, how do you divide Superannuation in a divorce? Is my partner going to take half of my superannuation? It is important to know how Superannuation gets divided during a divorce. In New South Wales, superannuation is treated as property and can be divided between the parties as part of the property settlement process.

Here’s how it generally works:

1. Valuation: The first step is to obtain a valuation of the superannuation interests. This can be done by requesting information from the superannuation fund, which will provide details on the value of the superannuation.
2. Obtaining a Court Order: The division of superannuation can be done by agreement between the parties or by a court order. If the parties agree, they can formalise the agreement through consent orders. If they cannot agree, the court can make an order to divide the superannuation as a result of a hearing. Once division of the superannuation funds has been agreed, the parties will need to contact the trustee of the super fund and advise them that you are seeking superannuation splitting orders. This is called providing the trustee with “procedural fairness”. The Trustee will then consider the Order you are seeking and either consent or object to it.
3. Splitting Superannuation: Superannuation can be split in several ways:
   • Base Amount: A specific amount is allocated to one party.
   • Percentage Split: A percentage of the superannuation balance is allocated to one party.
   • Flagging: The superannuation is flagged, meaning it is not immediately split but will be divided at a later date, such as when the superannuation becomes payable.

Splitting superannuation does not convert it into a cash asset. It is still subject to superannuation law and is usually retained until retirement ages are reached.

4. Considerations: Superannuation is not necessarily split 50/50 in a divorce. The court considers various factors when deciding how to divide superannuation. These include the length of the marriage, employment status of the parties and their income earning capacity, contributions of each party (both financial and non-financial), the future needs of each party and the overall assets and liabilities of the parties.
5. Implementation: Once a court order is in place, the trustee of the superannuation fund is notified, and a sealed copy of the order is provided to the trustee. The division is implemented according to the terms of the Order.
   

It is important to seek legal advice to ensure that the division of superannuation is handled correctly and in accordance with the law. If you have questions about your divorce proceedings or considering separating from your spouse, speak with one of our experienced Family Law Solicitors at Solari and Stock today on 8525 2700, or click here to request an appointment.

At Solari and Stock our experienced team of Sutherland Shire Family Law Solicitors include Riccarda Stock, Nicole Quirk, Shweta Kumar, Nikita Ward and Kirstin Attard.

Article written by Shweta Kumar
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