A person’s superannuation interests do form part of the property owned by that party for the purposes of a property settlement under the Family Law Act 1975.
However, because super is generally not payable to a person until they reach retirement age or some other event happens, the Court cannot simply carve it up and give a portion of a person’s super to somebody else.
The solution to this problem can be found in the somewhat complex provisions of Part VIIIB of the Family Law Act 1975. Under the legislation, where a Court determines (or the parties agree) that one spouse is to receive a portion of the other spouse’s superannuation interests, the Court has the power to make a ‘splitting order’.
A splitting order is an order of the Court that when a spouse’s superannuation is legally able to be paid out to them (usually upon the person reaching retirement age), the portion of it that the other spouse is entitled to receive is then transferred to the other spouse’s super fund until such time as their super is able to be paid to them.
In practice, this usually means that where a party is to receive a portion of the other spouse’s super, that party must:
© Cope Family Law 2020