Superannuation

If you have recently separated from your spouse we can help you split your superannuation. Dividing assets is a challenging aspect of any relationship breakdown. Rather than trying to manage everything yourself, seeking legal advice can make this process less stressful.

Superannuation is ‘property’. It therefore forms part of the matrimonial or de facto relationship property pool. If you don’t know how to split your superannuation, we can provide you with valuable legal advice.

Superannuation Laws

In Australia, the division of assets is considered a necessary part of separating.  If you were married or in a de facto relationship, your superannuation is treated like any other asset.  For de facto couples, superannuation laws only apply if your relationship broke down on or after 1 March 2009.

Upon separating, couples may have their superannuation valued and split. When dividing your assets, you should attribute an accurate value to your super fund. Your ability to do so may depend on your superannuation policy and whether your account is still in the accumulation phase. If your superannuation is valued at more than $5000 it can be split.

Splitting Your Superannuation

The process of splitting your superannuation can vary depending on your circumstances.  In most cases, separated couples must take the following steps:

  • Evaluate your superannuation – the value of you and your former partner’s superannuation should be evaluated before it can be split. If you are not a member of your former partner’s superannuation fund, you can access their details by request. Some super funds also charge a fee for providing this information.
  • Apply for a court order – if a superannuation agreement cannot be reached between you and your former partner, you will need to apply for a court order. A court-issued financial order will determine how your superannuation should be split.
  • Split your superannuation – when splitting your superannuation, it’s important to note that super funds are not a typical cash asset. Some super benefits cannot be paid until the beneficiary retires. This means that you may not be able to access the funds straight away, rather a split amount is ‘rolled-over” to a new superannuation account.

How Does the Court Split Superannuation?

The court can take different approaches when deciding how to divide a couple’s super fund. These are some of the most common ways superannuation features in divorce and separation settlements:

  • One spouse’s settlement may feature a portion of their partner’s superannuation.
  • One spouse may receive a greater portion of superannuation and less of a share in other assets. For example, the family home may be awarded to one partner, while the other receives more superannuation.
  • If one spouse has a substantial amount of super while their partner has none, the court may decide to split the fund 50/50. Super can be split in any percentage.

Splitting your superannuation allows for greater flexibility when structuring a property settlement. If you’re worried that the law may put you at a disadvantage, remember that the court treats each case individually. The unique circumstances of your separation will be taken into consideration, ensuring a reasonable outcome.

FAQs

Q. Can any kind of superannuation not be split by a court order

A. Yes. The law states that some superannuation interests are ‘unsplittable’. For example, if your super fund contains less than $5000, it cannot be split. There are other conditions in which some superannuation interests may be excluded from court orders, but only in special circumstances. To find out if any of your superannuation is ‘unsplittable’, always seek legal advice.

Q. Do I have to have my superannuation valued before it can be split?

A. You are not required by law to have your superannuation valued, but it would make sense to do so. By having your fund valued, splitting it accurately is much easier.

Q. What if I want to delay making a decision on how to split my   superannuation?

A. If you need to defer your decision for some reason, you can make a flagging agreement. This prevents the fund’s trustee from taking any kind of payment away from the fund until the flag is lifted.

Q. What if I can’t reach an agreement with my former partner on the value of our superannuation?

A. The court will decide on the value of your superannuation if you can’t reach an agreement with your former partner.

Speak to One of Queensland’s Largest Family Law Firms

Superannuation laws are confusing. Trying to split your super without the help of a lawyer can make your relationship breakdown even more taxing. We have the skills and knowledge to guide you through the process of splitting your assets.

We hope this information is helpful. Contact us for your own advice by phoning (07) 3221 4300 for a fixed-cost ($330 inc GST) no obligation 1 hour appointment with a family law expert. We can meet with you in person, by phone or by SKYPE.

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