Did you know that superannuation has been considered ‘property’ for family law purposes since December 2002? This means that superannuation can be split between you and your former partner after a separation. Prior to that the Courts could not properly deal with it and could not make superannuation splitting orders.

We are 20 years on from that change now and there are some learnings we can share about how superannuation is dealt with. Here are 8 things you need to know about your superannuation when preparing for divorce.

1 – The ‘Duty of Disclosure’ brochure

The Federal Circuit and Family Court publish a brochure on the duty of separated couple to disclose their financial circumstances – ‘Duty of Disclosure’.

Using this brochure as a tool to communicate this obligation to your former partner may be a less confronting way that getting a letter from a lawyer, or telling your former partner that you’ve received legal advice about it.

2 – If you aren’t given it – get it

There are a couple of ways you can go about getting superannuation information about your former partner if you are not given it:

  • If you know the superannuation fund that your former partner’s employer contributes to, you can complete a Form 6 Information request. Most funds have a ‘Form 6’ readily available on their website and impose a fee of around $150 to do this. See the below links to some funds to know what to look for:
  • From 1 April 2022, you can apply to Court to get the Australian Taxation Office (ATO) to disclose your former partner’s superannuation information. The process is simple, you just need to complete the ‘Superannuation Information Request (Online form)’, however it does require you already having a court application on foot.

3 – Check your ATO Portal

The Australian Taxation Office portal lists all superannuation interests linked to your tax file number. Using this summary as at 30 June helps you to ensure that all of the superannuation that you are disclosing is correct. You should also suggest that, in addition to your former partner’s superannuation statements, they provide a portal printout to ensure they’re disclosing all of their interests (including ones they may have forgotten about).

4 – Know what type of super you have

There are many different types of superannuation interests held by people working in Australia. These include:

  1. accumulation interest;
  2. partially vested accumulation interest;
  3. defined benefit interest;
  4. self managed fund;
  5. retirement savings account;
  6. small superannuation account;
  7. percentage only interest;
  8. approved deposit fund; and
  9. eligible annuity.

Different types of superannuation have different valuation methodologies and implications for the drafting of superannuation splitting orders, so knowing the type of interest you hold is an important start to getting advice about the best options for you.

5 – Get advice about tax implications

Sometimes there are good financial reasons for you to negotiate a trade off cash for superannuation or visa versa.

Talk to your accountant and/or financial adviser about the impact on you of keeping more or less money in super as part of your property settlement.

6 – Understand the impact of an operative time

All superannuation splitting orders will contain an ‘operative time’, which is the time specified in the order for the split to take effect. It is important that you understand what different operative times could mean for you.

7 – Get advice about your post-separation super contributions

If you are making additional employee contributions to your superannuation after separation, you might want to seek some advice about how those contributions might be treated for family law purposes, as those contributions are not protected from being considered in a property settlement with your former partner.

For example, if you and your former partner had children together, there is case law that suggests contributions to the family after separation will offset any contribution by the primary income earner to property, including superannuation accrued after separation.

8 – Know your limitation date

It may be too late for you to seek a split of superannuation from your former partner, if time has passed since your separation. Get some advice about the time frame that applies to you.

If you are in the process of negotiating a property settlement and have further questions, or you need assistance with the division of superannuation between you, we suggest you get some advice to know your options so that you can make an informed decision.

Courtney Mullen  is a family lawyer with more than 10 years’ experience in family law. She is a Family Law Partner at Phelps Reid Foster Johnson, having establishing the Canberra office for a publicly listed national family law firm and been a Director at a top tier family law firm in Canberra prior to that.

As a leading family lawyer in Canberra, she brings her invaluable experience from her work at Legal Aid ACT and in private specialist family law firms in the areas of collaboration, dispute resolution and litigation.

Courtney regularly volunteers for the Women’s Legal Centre ACT, is an active member of the Canberra Collaborative Family Lawyers Practice Group and sits on the Family Violence & Children’s Committee for the ACT Law Society.