Frequently Asked Questions

What sort of superannuation is covered under the new super splitting laws?

Most superannuation is covered by the new laws.

Accumulation plans, defined benefit plans and hybrid plans are all covered. Even judges’ and MP’s superannuation is caught.

Superannuation law is complex and there are many different types of superannuation. Approved deposit funds are covered as well as retirement savings accounts. Self managed superannuation funds also come within the new super splitting laws along with superannuation held in the Superannuation Holding Accounts Reserve.

But superannuation of de facto couples is not covered.

Why is superannuation of de facto couples not covered?

The law relating to the alteration of property interests under the Family Law Act 1975 is restricted to people who have been married. This is because the Constitution only permits the Commonwealth Government to make laws about marriage and the consequences of its breakdown.

The Commonwealth Government cannot make a law about what happens to the property of a de facto couple in the event of a separation. The State Governments have to give this power to the Commonwealth Government and have been asked to do so.

How to split superannuation interests?

Superannuation can be split by agreement or court order. There are technical legal requirements to be met when selecting either method.

Each party has to be independently advised by a legal practitioner when making an agreement and there are different types of splitting orders when the court makes an order.

It is important for trustees and administrators to recognise valid orders and agreements and to know what to do when an order or agreement is served.

What superannuation can be split?

In general, any payment to a member can be split. This includes the payment when made on retirement as well as when superannuation is rolled over from one fund to another. But there are some payments which cannot be split, such as payments for temporary incapacity, payments for hardship and payments to children. Payments to reversionary beneficiaries can be split.

Can the non-member have a new interest?

Yes. But not in all types of superannuation. In the case of accumulation interests in regulated funds, the non-member can have a new interest. However, for constitutional reasons, this is not possible in the case of defined benefit interests.

Before a new interest is created, the trustee has to serve a payment split notice.

Is there a need to amend trust deeds?

This will depend on the deed. Amending the deed to make it consistent with the new super splitting laws is advisable. It will give greater control to trustees on issues such as whether they admit the non-member as a new member.

It is wise to review trust deeds from time to time and remember that the new super splitting laws override trust deeds if they are inconsistent with the new laws.

Can you find out about your former partner's superannuation?

Yes. But you can only find out the information which is listed in the super splitting laws. The information listed is needed to obtain a valuation as well as information about tax and preservation.