divorce or separation and your super

The ATO’s MoneySmart checklist is a great way to tick off the essentials, from childcare to bills and where you’ll live.

A lawyer can help you understand your rights and responsibilities and how the law applies to you. MoneySmart also lists free legal advice services to help you understand your rights.

If your former partner doesn’t share this information with you and either you or they are a HESTA member, you can download and complete the Request family law information form (PDF) and send it to us. We don't charge a fee for this service.

Where you can’t get this information from us or another fund, you can ask the Family Court to source it from the ATO for you.

You have a few options to split super, depending on your situation.

The Family Court’s superannuation kit lists all the documents you’ll need to split super.

If you both agree

You can either:

• enter into a formal agreement (known as a binding financial agreement) with the help of a lawyer, which must include a signed certificate stating both you and your former partner have received independent legal advice to create the agreement

or:

• apply for a consent order (a court order that you and your former party agree to) in the Family Court (or Court of Western Australia) to split super. You may not need to go to court to apply for the order.
  
  

If you can’t agree

You’ll need to apply for a court order that the court makes on your behalf. Your lawyer or the Court Registry can tell you which forms you need to apply.

For court orders, you or your lawyer needs to send both the draft and, when ready, the final court order to HESTA via email or post.

For super splitting agreements, the final needs to be sent to HESTA via email or post.

We’ll confirm in writing once we’ve received the agreement or draft court order and any other required documents.

We’ll review the draft and confirm if we accept or reject it on the grounds of ‘procedural fairness’. Procedural fairness means we have assessed whether a split order is fair and reasonable.

If we have any questions, we’ll contact you in writing and explain next steps.

The split amount may be processed like this:

• if your former partner is with HESTA, the split will be processed and money transferred to their HESTA account
  
  
• if your former partner is not with HESTA, we’ll contact them to let them know they have three options: 

1. to have the split amount sent to another fund
2. to create a HESTA account
3. or (if over age 60 and retired) to withdraw the split amount as cash. 

They'll need to confirm their preferred option within 28 days. If we don’t receive confirmation from them within that time, we’ll set up a new HESTA account for them.

Generally, married couples have 12 months from the date of divorce or formal separation to split super with their former partner. 

The Family Court may look at the whole situation of both partners, including factors like:

• super contributed during the marriage
• financial situation after the marriage
• care or commitments to children or dependants.

Visit the Family Court website for more details.

A super payment flag (flagging order) is a legal instruction in Australian family law that stops a super fund from paying out any super during a divorce or separation until the funds are formally split.

A flagging order may be required if you or your former partner is concerned one of you might try to take money out of super before you’ve fairly divided your assets.

The ‘flag’ is placed on a member's super account, often via court order or agreement, effectively putting a hold on payments until a flag-lifting agreement or further court order removes the restriction.

Yes, your separation or divorce may impact your Age Pension payments due to the change in relationship status, assets, living arrangements, and more. If you’re eligible for the Age Pension, you and your partner will be paid the Age Pension single rate, rather than the couple’s rate. You’ll both still need to pass the income and assets tests individually.

Generally, you’ll need to notify Services Australia of your change in relationship status within 14 days.

Find out more on the Services Australia website.  

Yes, splitting an income stream can impact the transfer balance cap for both you and your former partner (whether or not you are HESTA members). You may need to let the ATO know if you split an income stream to manage your transfer balance account.

If you or your former partner had started an income stream before the relationship breakdown, the split amount may be received as a lump sum or a percentage of the other partner’s income stream benefits.

Most income streams are in the retirement phase and will count towards your transfer balance cap.

Find out more on the ATO website. 

Contribution splitting applies to married or de-facto couples while they are together. One partner chooses to transfer some of their before-tax super contributions to the other's account to even out super balances within couples. Find out more about contribution splitting.

Super splitting applies to dividing super between couples who are separating, as part of their property settlement.