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Super in a separation or divorce

22 Sep 2023 5 min read

Did you know that married and de facto couples have the option to split their super entitlements if they separate or divorce?

For many Australians, superannuation is the largest financial asset after the family home.1 When a relationship ends, your superannuation can be divided with your former partner as part of an agreement or by court order. This includes marriage or, in certain circumstances, de facto relationships, both heterosexual and same-sex. The rules do not apply to de facto couples in Western Australia.2

Find out what happens to super if you separate or divorce.

Understanding superannuation splitting

The super benefit can be split as part of the property settlement either by:

  • Agreement between the parties or
  • Court order if the parties do not agree and the settlement is decided by a court.

A benefit can be “flagged” by a Flagging Agreement or court order or split by a Splitting Agreement or court order.

A superannuation payment flag is generally used when one party may try to access their superannuation without the consent of their ex-partner and prior to a property settlement agreement being reached between the parties. If a benefit becomes payable to the member while a flag is in place, it cannot be paid, and NGS Super will notify the parties or the Court. A payment flag will remain in place until an agreement is reached, and final court orders are made.

Splitting means a decision on how to split the benefit, and a portion will be allocated to the non-member spouse.

Determining eligibility for superannuation splitting

Splitting super does not automatically mean the benefit is accessible in cash or any other form. Preservation laws remain, and superannuation can only be accessed at the preservation age or by meeting other conditions of release.

From 1 April 2022, the law allows individuals in a current property settlement proceeding to request super information about their current or former spouse/de facto partner through the Family Courts.

If you are involved in a current property settlement proceeding, you can access information about the amount of super in your ex-partner’s account by making a request via the Commonwealth Courts Portal.

The process of superannuation splitting in divorce or separation

You will need to download and complete the Superannuation Information Request form.

An information Kit is available from the Federal Circuit and Family Court of Australia— this includes a Form 6 Declaration and a Superannuation Information Request form.

This kit is used to request information from a superannuation fund if you are seeking superannuation splitting or flagging orders.

Alternatively, you may hire a lawyer to help. NGS Super does not charge any fees when you ask for information from us.

Getting information from NGS Super

We will only provide the information required by the legislation. If the request is made by someone other than the member, we cannot tell the member about it.

NGS Super cannot provide legal information. It’s important to note that every situation is different. Consider seeking legal advice if you have any questions or need assistance with your finances and the separation or divorce.

You may be eligible to access free legal advice through Community Legal Centres or Legal Aid.

Who can ask for information?

Under Family Law, the following people can ask for information about a member’s super benefits:

  • the member
  • the member’s spouse
  • a person who intends to enter into a superannuation agreement with the member.

These people can ask for super information from the Commissioner by applying to the Registries.

How to contact NGS Super

To have your request processed as soon as possible, make sure you send your Form 6 Declaration and Superannuation Information Request form to the correct address (below). If sent to the wrong address, we may be unable to take action for you.

Send all family law documents to:

NGS Super
GPO Box 4303
MELBOURNE VIC 3001

The importance of seeking professional advice during the process

We are not allowed to give you any advice about family law matters. If you have any questions, consider getting legal advice from a qualified person.

Learn as much as you can about your finances

Learning about and understanding your finances will help you achieve financial independence. Don’t be afraid to ask questions. No question is bad, and the answer may transform your future.

NGS Super has a range of tools to get you started, including our easy super quiz and super savings calculator.

You can also book a call with one of our Super Specialists. Whether at the start of your career journey, approaching retirement or anywhere in between, our Super Specialists are here to help. It’s free, and they can help you with any questions about superannuation, investments or insurance.

You don’t have to be an NGS Super member to set up a call with one of our Super Specialists. Book your call.

A few things to note

A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your partner (of any sex or gender) had a relationship as a couple living together on a genuine domestic basis.

1 https://treasury.gov.au/publication/government-response-to-the-financial-system-inquiry/superannuation-measures
2 https://www.industrysuper.com/understand-super/money-management/super-and-divorce-or-separation/

The information provided is general information only and does not take into account your personal objectives, financial situation or needs. Before acting on this information or making an investment decision, you should consider your personal circumstances and read our Product Disclosure Statement and Target Market Determinations for more information. You should also consider obtaining financial, taxation and/or legal advice which is tailored to your personal circumstances before making a decision.

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