Financial Agreements and superannuation splits
Under the Family Law Act, superannuation is treated as property of the parties and can be split between the parties following the breakdown of a marriage or a defacto relationship. Superannuation splits will only take effect pursuant to a Court Order or a Financial Agreement.
If you are formalising your property settlement by a Financial Agreement, you need to be cautious if your agreement includes a super split. This is because if your former spouse’s super balance exceeds certain threshold amounts, you may need to have been separated for twelve months prior to becoming eligible to split super. If you enter into a Financial Agreement and your former spouse’s entitlements exceed such thresholds, the super splitting clause will not be actionable and your former spouse may rollover his or her superannuation interests prior to any super split being effected and you may find yourself in a position, where you need to spend monies or more monies on lawyers, to pursue your super split.
If you are formalising your property settlement by way of Court Order, there are no threshold amounts which require you to have been separated for a period of twelve months.