Caught up in the romantic rush of wedding plans, many couples give little thought to safeguarding financial assets such as superannuation. They'll live happily ever after, right? But the relentless rise in the divorce rate suggests that's less likely to be the case. And when it comes to the grim reality of dividing major assets such as a house and a superannuation entitlement, both partners often lose out.

"Traditionally, one partner usually the one with custody of the children would get the house, and the other would get the majority of the super," says Angela Whitbread, financial planner for Whitbread Financial Services. "That left one partner asset-rich and cash-poor and the other with super that they might not be able to access for 30 years."

Since the Family Law Act 1975, superannuation has been treated as a financial resource rather than property. It's not "owned" by the member of the super fund until it matures but is held in trust under the control of the fund trustee. And because the Federal Government can't make laws that bind third parties such as super fund trustees, the courts have not had the power to make an order for the super to be split. It has been a major headache for many judges. But after years of estimating the value of each individual's funds and trying to compensate the other partner accordingly, a solution is at hand.

New legislation containing far-reaching changes to the way super is handled in divorce proceedings received royal assent on June 28. Called the Family Law Legislation Amendment (Superannuation) Bill 2000, it won't come into effect until late next year. But it's so revolutionary, according to one expert, that couples considering a split might do better to delay divorce proceedings until then.

"It's hard because divorce is such an emotional thing, but [the legislation] makes it a lot easier for couples to deal with their property," says Ross Johnston, head of advisory and technical services at Bridges Financial Services. "It means super is part of the property proceeds in divorce [and] can be split into two accounts."

At the simplest level, superannuation funds often consist of preserved and non-preserved money. The super fund member can access the non-preserved component (usually after-tax contributions made by the super fund member) whenever they want; the preserved portion (usually contributions made by the fund member's employer) is kept by the trustee until the member retires. Under the new rules, either the couple or the court can serve a notice to the trustee that the total superannuation benefit is to be divided, and both the preserved and non-preserved components will be split proportionally.

"If it's a 50-50 division, both partners get a half-share of each component," says Johnston. "The preserved component will be flagged for the future, so the non-member spouse will have money in their name but won't be able to access it until they meet the condition of release themselves."

In a paper delivered in June, Minter Ellison solicitor Bernie O'Sullivan said "a payment flag", which prevents a trustee from paying out part of a superannuation benefit, could be lifted only once certain legal requirements had been met. O'Sullivan warned that "giving advice to a spouse [on the matter] imposes a considerable burden on the legal practitioner".

It's not the only tricky issue if the preserved benefit is split, does the non-member spouse automatically become a member of the ex's fund? Not necessarily, Johnson says. It's probable "the non-member spouse would become a member of the super fund". He says if there was a trustee rule that stopped the non-member spouse becoming a member of the fund (for example, if it was an industry fund), the spouse could just roll the money over to another fund that could accept the benefit.

The new rules will apply to marriages dissolved before December 2002, the latest date at which the new rules start, but only where a property settlement hasn't yet been finalised. And when it comes to splitting pension payments, the trustee must make payments to the non-member at least monthly, except when the payments are less than $1,000.

Although their administrative workload will increase, super fund trustees have welcomed the changes. Michaela Anderson, director of policy and research for the Association of Superannuation Funds of Australia, says trustees recognise that better arrangements for divorce settlements need to be put in place. "In the light of the need to change our systems, our main concern is to ensure the new legislation is as unintrusive and inexpensive to all members as possible."

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