Divorce and your super

The way your super is handled if you separate or divorce is guided by the Family Law Act 1975 (Cth) (Family Law Act).

According to the Family Law Act, your super is treated as property that can be divided between parties in the event of a marriage breakdown. The law allows you and the ex-spouse you are separating from to value your super and ‘split’ or ‘flag’ the super according to a court order or an agreement.

Your super can be flagged

Flagging orders are useful when the value of your super is uncertain at the date of the court hearing, but will be able to be calculated in a short period of time. A flagging order prevents a super fund from dealing with the account until the flagging is lifted, at which point your super can be split.

Your super can be split

If your super is split, it is still subject to Commonwealth preservation laws. Generally you can only access your super when both you and the ex-spouse you are separating from reach retirement age, or in certain other limited circumstances.

Your super is governed by a number of laws

As a GESB member, your super entitlement and the way it can be split with your ex-spouse, is governed by a number of laws including the Family Law Act, State Superannuation Regulations 2001 (WA), and Family Law (Superannuation) Regulations 2001 (Cth). If you receive legal advice, it’s important that your lawyer understands how these laws apply to your situation.

Western Australian legislation does not allow de facto couples to split their super in the same way as married couples. If this applies to you and you live in WA, currently you can’t apply to the Family Court for a splitting order, or rely on an agreement in relation to your super.

A Clean Break can split your super sooner

‘Clean Break’ is the concept which allows you to split your super to end all monetary claims between you and your spouse before you can access your super in retirement. The Clean Break principle applies to all court orders and splitting agreements made since 28 December 2002.

This means your super split can be made relatively quickly. For court orders and splitting agreements made before 28 December 2002, your super would only be split when you would access your super, i.e. when you retire, which could be a long time after your divorce.

A court order made under the Clean Break principle must be presented to the Family Court and both parties will need to be involved in the process. If you have a court order made under the Clean Break principle, the court will generally not hear any further claims that you or your ex-spouse have for the rest of your lives and even beyond that.

The process of splitting your super

Our role in Family Law matters is to administer the scheme and act upon the agreement or court orders between you and your ex-spouse.

The splitting of super can be authorised by:

  • A formal agreement between you and the ex-spouse you are separating from called a Superannuation Agreement (also known as a Splitting Agreement) or a Binding Financial Agreement (if it deals with super), or
  • A court order that is issued by the Family Court directing how the super should be split

Not all super benefits can be split

Super interests and benefits that cannot be split include:

  • Benefits of less than $5,000
  • Payments made to either of you on financial hardship or compassionate grounds
  • Pension payments (by way of salary continuance benefits) that are made as a result of temporary ill-health
  • Payments to, or for the benefit of, a child reversionary beneficiary after the death of either of you if:
    • your child has not yet turned 18, or
    • your child is over 18, the child was dependent on the member at the date of death and the payment is made to enable the child to complete their education,
      or
    • your child has special needs of a physical or mental disability and the payment is made to another person for the benefit of that child

Family Law legislation requires that we are afforded ‘procedural fairness’ before a court order or consent orders are finalised. This means we will review the draft order and comment on any changes that might be needed before stating that we have no objections to them. We have 28 days to review draft court orders and raise any objections to them.

While you don’t have to by law, it’s often a good idea to provide us with a copy of any proposed Superannuation Agreement that may involve the super account you hold with us. This could help to avoid any issues with implementing the agreement.

Draft orders or draft splitting agreements are not legally binding

Only final court orders and splitting agreements can change what we do with your super when you get divorced. This means if:

  • You or your ex-spouse’s benefit becomes payable and
  • You or your ex-spouse request payment and the payment is processed before we have received final court orders or the splitting agreement and
  • There is no flagging agreement

In this case, we will need to pay the benefit as requested, in accordance with the benefit payment instructions.

Family Law and super before 28 December 2002

Before 28 December 2002, the Family Court could order a member to split his or her super and pay their spouse a defined amount once the member reached retirement age and met a condition of release (except for transition to retirement).

We can only pay you or your ex-spouse on behalf of the other with a signed Irrevocable Authority from whoever is the member.

Splitting can now happen before you reach retirement

Since 29 December 2002, the law has allowed splits to be made earlier than your respective retirement dates. Once we receive your court order or agreement, we can implement the split within 28 days of receipt of the payment form (and ID if required).

We will open a new GESB Super account for an eligible person, unless they want the split amount to be rolled over to an existing GESB account or into another complying super fund.

Find out what applies to your type of super account

Terminology used in court orders can be very complex and the wording is not always clear.

  • Many orders and agreements dated pre-28 December 2002 are not specific when describing our schemes. Ambiguity here could mean that the split will be calculated using the values in all of your GESB accounts and not just the account you held at the date the court order or agreement was issued.
  • Some court orders and agreements include specific variables for splitting super. We find that we are unable to determine the required values to meet the variables, which makes calculating the super split a very complex and lengthy process.

West State Super and Gold State Super are complex schemes and this complexity was often not taken into account when court orders and agreements were written.

Gold State Super members, due to the complexities and other matters that may affect the value of your benefit, such as discounting, you should always seek a valuation for Family Law purposes before you negotiate or arrange to draft super splitting orders or agreements.

See the scheme details for information on how your super is likely to be split:

If you’re not sure how a Family Court order affects your super, call your Member Services Centre on 13 43 72 to discuss.

There are three main phases in the super-splitting process

1. Requesting information

An eligible person can request information about a member’s super. An eligible person is:

  • A member of GESB
  • A member’s married spouse
  • A member’s former spouse
  • A person who is intending to enter into a super agreement with a GESB member (including a pre-nuptial agreement)
  • If the member has died, their legal personal representative
  • If the spouse has died, their legal personal representative

If you’re the eligible person requesting information, you need to complete a ‘Form 6’ and a ‘Superannuation Information Request’ form (available at the Family Court website).

2. Providing information

Once we have received the required forms, we will provide information to you if you’re the eligible person. This can be used in a number of ways, for example:

  • To make an agreement on how to split super after a marriage breakdown
  • To take to the Family Court to obtain a court order
  • To assist in the splitting of assets other than super
  • To inform the details of a pre-nuptial agreement on how to split super in case of a future breakdown

3. Super valuation and decision

We receive a splitting agreement or court order authorising a payment split.

If you have applied for this, you will be notified that you or your spouse’s interest is subject to a split and the value of the split.

Your spouse will be contacted and asked where he or she would like their portion transferred.

We will implement the splitting agreement or court order within 28 days of receiving the payment form (and proof of identity if required)1.

We’ll open a new GESB Super account if you or your spouse don’t have an account with us, unless you or your spouse would like the split amount to be rolled over into an existing GESB account or another complying super fund.

Gold State Super members

The notional, or predicted benefit amount shown on your most recent member statement, should not be used for Family Law valuation purposes. This value will not necessarily be representative of the true value of your benefit at a particular time for Family Law purposes.

If you are under age 55 for deferred accounts and under age 65 for contributory accounts, a discount factor will need to be applied to arrive at a valuation for Family Law purposes. We strongly recommend that you submit a ‘Form 6’ application to get an estimate of the discounted value of your super interests.

Transition to retirement

If you have a court order dated pre-28 December 2002, you are unlikely to be able to access your super early through a transition to retirement arrangement. Transition to retirement is not a condition of release under the State superannuation legislation with respect to Family Court orders.

It’s important that your legal advisers know which regulations apply to your situation. You can call your Member Services Centre on 13 43 72 for more information.

Contact us

We can’t provide legal advice, but we may be able to clarify some of the details in your court order and ensure you have the correct scheme information before you seek advice from a lawyer.

We recommend you contact us if you have a Family Court order or agreement and:

  • You have not already sent it to us, and/or
  • You plan to access your super early through a transition to retirement arrangement

More information

To find out more about how your super is impacted by divorce, visit the Family Court website and type the words ‘Superannuation Information Kit’ into the search tool. This will help you find more details and a copy of the ‘Form 6’ (information request).

1 Implementation of the splitting agreement or order does not mean that the money is paid at this time. Timing of payments will depend on various issues.

Page last updated 19 March 2019