Relationship breakdown and your super

Super is often one of the biggest assets you have as a couple, but it’s often overlooked when a relationship breaks down. Any super assets you and your ex-partner hold can be taken into account when you divide your property during a separation or divorce. This applies whether you were married or in a de facto relationship (with someone of the same sex or opposite sex).

It’s important to remember that any super you split isn’t converted to cash so it’s still subject to super laws. This means you won’t generally be able to access it until you’ve met a condition of release, such as retirement.

You don’t have to split your super assets. Instead, you and your ex-partner could agree to use super assets to offset the division of other property.

Most super entitlements can be split. However, there are rules in place to prevent splitting of super if the balance is too small. For example, if your super balance is less than $5,000 it cannot be split. Payments made to a person on the grounds of severe financial hardship or on approved compassionate grounds can’t be split either.

Not all relationship breakdowns end up in the courts. However, if an agreement can’t be reached between you and your expartner, the Family Court of Australia or the Federal Circuit Court of Australia may issue a court order.

Depending on your situation, there are three key ways that super entitlements can be split:

• Superannuation agreement – A formal written agreement can be developed with independent legal guidance. Both you and your ex-partner must sign a certificate that proves independent legal advice was given.
• Consent order – A type of court order that can be lodged with the Family Court where you both agree to the terms.
• Contested order – A type of court order that can be made by the Family Court where an agreement can’t be reached.

If you receive a super payment split through an agreement or court order, you can request to have your super money paid to:

• Your Cbus account.
• Another super fund.

This money can only be paid to you as cash if you’re eligible for a cash payment (e.g. if you’ve reached retirement age or the money is classified as unrestricted non-preserved).

Family Law can get complicated. A lawyer or mediator can provide you with advice and options for splitting super.