Divorce and your GESB Super

If you already know what happens to your super when you divorce, we will now take a closer look at what will happen to your GESB Super account.

The way your super is handled depends on whether your Family Law Court order is dated before or after 28 December 2002.

This information is also relevant to GESB Super (Retirement Access), Retirement Income Pension, RI Term Allocated Pension accounts.

First, the Family Law split is calculated

If your Family Law Court order was dated before 28 December 2002, the split is based on the amount or formula stated in the court order.

If your Family Law Court order is dated on or after 28 December 2002, the base amount to be paid from your GESB Super, GESB Super (Retirement Access), Retirement Income Pension or RI Term Allocated Pension account will be adjusted to reflect the investment performance (that is, change in unit prices) of the account between the operative date1 and payment date. This means that the amount may go up and down in reaction to market movements.

If a percentage is used, the calculation is based on applying the percentage to the account balance on the date of processing or dependent upon the date in the court order.

Interest is then calculated, if necessary

If your Family Law Court order was dated before 28 December 2002, the interest and adjustments will depend on the instructions in your court order. If there is no mention of interest in the court order, then no interest will be calculated or paid.

If your Family Law Court order is dated on or after 28 December 2002, your base amount will be adjusted along with the investment performance, rather than interest. This is because our GESB Super, GESB Super (Retirement Access), Retirement Income Pension and RI Term Allocated Pension schemes are all based on unit pricing.

Who is liable for the tax?

If your Family Law Court order was dated before 28 December 2002, tax law treats your Family Law split as a re-direction of your super benefit.

This means the super lump-sum payment is treated as if being made to you and not the ex-spouse. The tax withheld is based on your age because you will be liable for the tax. The Payment Summary is issued to you. Your ex-spouse receives the net amount with no further tax to pay.

Unless the court order addresses this issue, you as the member pay all the tax.

If your Family Law Court order is dated on or after 28 December 2002, tax law treats your Family Law split as if the payment is your ex-spouse’s super benefit.

When the super benefit from your GESB Super, GESB Super (Retirement Access), Retirement Income Pension or RI Term Allocated Pension account is rolled over to another fund, no tax is paid because these are all taxed funds.

When will the split take place?

If your Family Law Court order was dated before 28 December 2002, we can only make the split once you claim your super benefit (i.e. generally at retirement).

We must receive the Irrevocable Authority from you before we can release funds to your ex-spouse.

If your Family Law Court order is dated on or after 28 December 2002, we can split your benefit once we have received the original or certified copy of the sealed court order, the payment instructions and certified ID.

If using an agreement, you and your ex-spouse must also supply certificates from your respective legal advisers confirming that you have been provided with independent legal advice.

How is the amount paid to your ex-spouse?

If your Family Law Court order was dated before 28 December 2002, your ex-spouse will be paid their portion of the split amount by cheque or electronic funds transfer (EFT) once we have all documents and you have access to your benefit (i.e. at retirement).

The amount is paid to your ex-spouse regardless of their age.

If your Family Law Court order is dated on or after 28 December 2002, a letter is sent to your ex-spouse asking for payment details. We will wait 28 days to hear from them about whether they would like to:

  • Transfer the amount to a current GESB account
  • Transfer the amount over to another complying super fund they nominate
  • Transfer the amount to AUSfund, our eligible rollover fund, if your ex-spouse isn’t a GESB member and hasn’t chosen a super fund to pay the money into

    You can contact AUSfund on 1300 361 798 or visit ausfund.com.au for more information.

When is the amount paid to your ex-spouse?

If your Family Law Court order was dated before 28 December 2002, your ex-spouse will be paid once you access your benefit (generally at retirement) and once we have received the sealed court orders and your Irrevocable Authority.

If your Family Law Court order is dated on or after 28 December 2002, your ex-spouse can apply to have the amount paid to them once they meet a condition of release of their chosen super fund, usually once they reach retirement age.

If you’re using an agreement, you and your ex-spouse also need to provide certificates from your respective legal advisers confirming that you have received independent legal advice.

1 This is the commencement of recognition of the ex-spouse’s entitlement. For a court order, the operative date is usually the date specified within the court order. For a Splitting Agreement, the operative date is the beginning of the fourth day of business after the day in which a copy of the agreement, together with other prescribed documents, is served on the trustee, together with a copy of the Decree Nisi or Separation Declaration.

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Page last updated 20 December 2018