In a typical post-separation situation, the husband would usually get a lesser share of the property to compensate for his greater share of the super.
However, the family Law amendment in 2002 has already allowed a fairer judgment regarding the splitting of superannuation after couples separate. Under the amended law, the wife can have a portion of the husband’s super to achieve some equilibrium. De facto couples and same-sex couples who come under the Family Law Act are also entitled to the same right given the appropriate case.
There are two ways on how couples can separate their superannuation. First can be done by entering into a written agreement, wherein couples can agree on how many shares they would get. This method requires couples to have independent legal advice, who will sign a certificate stating that the couples have received independent legal advice for the agreement to be binding. In an instant where couples cannot reach an agreement because of impending family violence, one of the parties can apply for a court order to split the superannuation.
In splitting the superannuation, couples need to get the value of the superannuation and file some paperwork with the fund manager. A separate interest will then be created in the wife’s name while the other interest goes to the husband in the same percentage. It should be noted that the law treats superannuation as a different type of property. Unlike financial assets, superannuation cannot be converted into cash and may only be retained until retirement age is reached. Regardless of the type of agreement the couples have achieved, the split amount remains superannuation and can only be accessed by the laws of superannuation established by the government.
Whether by agreement or court order, it is also worth noting that the splitting of superannuation is based on the principle of what is “just and equitable” and that all superannuation is deemed included, notwithstanding the time over which it was acquired by the other party.
Superannuation may not be automatically split into 50 – 50. In an instant where one party prevents the splitting of the super, the court will issue a flagging order to prevent coercion and any other dealings with the benefit that may likely to be done without the permission of the court.