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 and is generally only accessible when you meet a condition of release, such as reaching retirement age.
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
The 'Clean Break' principle requires the court to (as far as practicable) make orders that will finally determine the financial relationships between spouses. This can give spouses the ability to split a member's super before the member is able to access their super. The Clean Break principle applies to all court orders and splitting agreements made since 28 December 2002.
The super split can be made relatively quickly, as opposed to a pre-28 December 2002 court order or splitting agreement, where the split can only be made at the time the member accesses their benefit (i.e. when the member retires).
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 either:
- 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)
- 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
- Is over 18, was dependent on the member at the date of death and the payment is made to enable the child to complete their education
- 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.
How we action your split
Following receipt of the court order or agreement, we are able to implement the split within 28 days of receipt of the payment form (and ID if required).
Once a split has occurred, we will attempt to pay the splittable amount to the ex-spouse by following the steps below:
- Transfer to a super fund nominated by the ex-spouse
- If step 1 is not possible and the ex-spouse is a current West State Super member, transfer to that fund
- If steps 1 and 2 are not possible and the ex-spouse is a current GESB Super, Pension Scheme or Gold State Super member, transfer to GESB Super
- If none of the above are possible, transfer to the Australian Taxation Office (ATO) as a voluntary fund transfer
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 inform the details of a Pre-nuptial Agreement on how to split super in case of a future breakdown
- 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
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.
If we do not receive payment instructions within 28 days of issuing a Payment Split Notice, the benefit may be transferred to an existing West State Super or GESB Super account or, alternatively, to the ATO as a voluntary fund transfer.
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.
Family Court orders made 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, which aligns with the court order.
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.
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.
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.
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
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.
- Call us on 13 43 72
Thank you for printing this page. Remember to come back to gesb.wa.gov.au for the latest information as our content is updated regularly. This information is correct as at 04 August 2021.