The simple answer is, yes. Superannuation is treated as property under the Family Law Act 1975 (“the Act”) and Part VIIIB of the Act gives a court the power to make orders so as to distribute superannuation interests between the parties (known as “splitting orders”). Splitting orders apply to all types of superannuation funds.
However, the way in which superannuation is treated may differ from other types of property because superannuation is held in a trust. Apart from hardship, illness or disability it is not possible to access superannuation benefits until a person reaches preservation age or they commence a transition to retirement pension while working.
Superannuation can be split between parties either by (1) a Superannuation Agreement, entered in to between the parties setting out the way in which the superannuation interests are to be divided between the parties, or (2) an Order made by the Federal Circuit and Family Court of Australia. The Family Law (Superannuation) Regulations 2001 set out the steps for valuing and implementing a splitting order. The methods of valuation differ depending upon the type of interest held in the superannuation fund (For example, the method for valuing an accumulation interest will differ from the method for valuing a defined benefit).
A superannuation splitting order generally allows the court to take the superannuation interests of one party and add it to the superannuation fund of the other party. A splitting order generally takes effect upon a payment from a superannuation interest becoming payable to the member spouse. At this time a certain amount (either a set amount or percentage) will be paid to the non-member spouse and the remainder will be paid to the member spouse. There is also an option available to the non-member spouse to roll out the payment to them from their superannuation spit) to their own or another superannuation fund.