FAMILY LAW FACT SHEETS

1. When and what does super-splitting really mean?
   28 December 2002 is the date from which you can "split" super under changes to the Family Law Act 1975.
   Basically the new legislation means superannuation can now be treated as "property" and not just a future "resource".
   The legislation is complex. There are many tax and financial planning issues to be taken into account when splitting superannuation (e.g. tax free threshold). This is only an overview.
2. How is super valued?
   Complex formulae are used to value superannuation interests.
   Depending on the type of fund (e.g. accumulation funds, defined benefit funds) the method of valuation will change.
3. What can the Court do?
   The Family Court can make "flagging" or "splitting" orders.
4. What is flagging?
   A flagging order tells the trustee not to make a splittable payment without the leave of the Court.
5. What is splitting?
   A splitting order tells the trustee to create a separate fund in the name of the non-contributing party.
   All components of entitlements are split – lump sum pension, preserved and non-preserved components and all retain their character in the newly created fund.
6. Can we just agree on splitting or flagging our super?
   Yes, you can agree on an agreed split or flag in much the way as you can reach a "Financial Agreement".
7. Will the Court always split super?
   No, the Court has a wide discretion. For instance, a superannuation split may not be appropriate if it would mean selling the family home.
8. Can I move split super to my own fund?
   In most cases it will be possible to transfer the benefits you receive upon a split to another fund.
   However, in some funds such as a defined benefits scheme the party receiving the split funds may have to retain their entitlements in that fund until the original member becomes entitled to their superannuation.
9. We're not divorcing; can't we just use this process to obtain the tax benefits?
   No, you can only use this process upon the final breakdown of marriage and severe penalties apply for abusing the process.
   If you have not divorced the ATO will require a declaration about separation.
10. Can de-facto or same sex couples use the new legislation?
    The new laws are not available to de facto or same sex couples.
    This is partly an issue of public policy but principally a consequence of the constitutional powers of the Commonwealth that are not seen to extend to de facto or same sex couples.

Please note all Family Law information contained on this site is specific to Australia and the De Facto Law information is specific to South Australia only. These fact sheets are not intended to constitute or to be a substitute for legal advice. If you wish to obtain any further advice specific to your case please contact one of our Family Law Team.
Brendan Murray (Partner) Jill Miller (Partner)