Sarah Walker: Can my ex get my super? Hi, my name is Sarah Walker and I’m a lawyer here with the family law team at Turnbull Hill lawyers. That is a really common question that we get asked on a daily basis in family law property matters. Superannuation is considered property for the purposes of a property settlement. How that is dealt with depends on a number of factors and there are a number of rules that govern how superannuation is treated as part of your property settlement. Where agreement is reached as to one party receiving a split of the other one’s superannuation, there are a number of steps that you must take.
The first step you must take is, is this a fund that can be split? The majority of funds within Australia can be split, therefore, the next step you must consider is the value of the superannuation. This could be obtained by obtaining the most recent superannuation statement or there are particular regulations around obtaining the value of a super fund. This is called a Form-6 declaration.
To effect a split of super, this must be done by either entering into a binding financial agreement, consent orders or by obtaining an order of the court. It is not as simple as writing to the super fund and requesting that X amount of super be split from the wife to the husband. Once these orders have been drafted, they must be sent to the super fund, to the trustee who governs the super fund and a request must be made that this be approved. This is called procedural fairness. If the trustee approves the form of the orders, you can then proceed with finalising the agreement or the orders that you’re entering into.
Once this has been done, and the orders have either been executed and signed or filed with the court, they’re then sent off to the super fund. Essentially, they give approximately four days for them to then effect the transfer of super. It’s really important to get legal advice regarding your superannuation split as it’s important to have the wording of the orders in accordance with what the trustee will require. Otherwise, they might refuse your request to split super.
Once the orders have been approved by the court, these are then sent to the trustee of the super fund. Once the trustee of the super fund has received the final orders or the stamped orders of the court, they then have an operative time frame in which to effect the split. This is generally four days. This is beneficial as it’s not a long drawn out process for the super split to be effected. There is a misconception that a superannuation split when rolled over can be converted into cash. This is not correct. It must be rolled into another fund.
It is therefore really important to obtain legal advice about a potential superannuation split, as the wording or the drafting of the orders is going to be critical to whether this is approved. If you have any questions about a potential superannuation split, please contact Turnbull Hill lawyers to discuss.