Superannuation Splitting

When dealing with a financial matter in the Family Court of Western Australia, the nature of superannuation and how it is treated is different depending whether you and your former partner were married or in a de facto relationship.

De facto couples

The current law prevents partners in Western Australia who were in a de facto relationship from splitting their superannuation between them.  The parties’ superannuation entitlements are still taken into account, and are treated as a financial resource.  Western Australia is the only state or territory where de facto couples are treated differently to married couples in relation to superannuation.  This is likely to change in the future, although it is unclear when the new law will come into effect.

Married couples

Parties who were married may be able to divide their superannuation between them, using “superannuation splitting orders”.  Superannuation entitlements are able to be treated as property of married parties and are able to be split between separating parties at the time of a property settlement.  Part VIIB of the Family Law Act 1975 (Cth) (“FLA”) contains information in relation to the superannuation splitting scheme.

Parties may seek orders to divide a person’s interest in an eligible superannuation plan.  An eligible superannuation plan means any of the following:

The Trustee includes an RSA or eligible annuity provider and any person who manages the particular plan.

If you require information about your former spouse’s superannuation entitlements, you may wish to complete a Form 6 from the Superannuation Information Kit.

 

Types of superannuation splits

Section 90XT of the FLA identifies three different types of superannuation splits, so that the non-member spouse receives:

Notification to superannuation fund trustee

Before the Court can make a superannuation splitting order, the Trustee of the fund must be given notification of the proposed orders.  That means that parties must send a copy of the proposed orders to the superannuation fund not less than 28 days before they file their Application for Consent Orders, or the Court hearing where the judicial officer is being asked to make the orders.  Ordinarily, the superannuation fund will respond within 28 days of receiving the draft orders.

If any changes are required, the parties must amend the proposed orders and send them back to the fund for approval again.

If no changes are required, the superannuation fund will send a letter advising that they do not object to the orders as drafted.  A copy of that letter must be filed at the Court.

If the superannuation fund have not responded after 28 days, parties are entitled to assume that the Trustee does not take any issue with the drafting of the orders.  Parties should file their proposed orders, along with a copy of the correspondence sent to the fund, and include a note that no response has been received.

Example of superannuation splitting orders

The following is an example of a basic set of orders that may be approved by an industry superannuation fund (this does not include self-managed superannuation funds) for a superannuation split of a specific dollar amount.  Parties must check specifically with each fund whether they would approve the proposed orders using the process set out above.

  1. In accordance with Section 90XT(1)(a) of the Family Law Act 1975 (“the Act”), whenever a splittable payment within the meaning of Section 90XE of the Act becomes payable to or on behalf of the [member spouse, eg Husband/Wife] from his/her interest in the [insert name of fund] Superannuation (“the Fund”), the [non-member spouse] shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $[dollar amount] and there be a corresponding reduction in the entitlement that the [member spouse] would have had but for these Orders.

  2. Order 1 shall bind the Trustee of the Fund and shall take effect from the operative time being the fourth business day after the date of service of these Orders on the Trustee.

  3. The [member spouse] shall forthwith cause a copy of these Orders to be served upon the Trustee of the Fund and request the Trustee to note the Orders and act in relation to any payment in accordance with the [member spouse]’s obligations.

  4. Pending implementation of paragraph 1 above, the [member spouse] be and is hereby restrained from receiving, disposing of, encumbering, or otherwise dealing with his superannuation entitlements with the Fund save as specified in these Orders.


Last updated: 13-Oct-2021

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