Protecting your superannuation in a split
Superannuation is a significant investment made during your working life and it’s important to know how to protect your super – and how it could be divided – during separation.
There are options available as to how super can be dealt with in a property settlement.
When a couple goes their separate ways, the super balances of each person may remain the same, with each one taking their respective entitlement from the asset pool, or the super may be split between the couple.
Superannuation fund splits can be done in any percentage, and it does not have to be a 50/50% divide.
For superannuation to be split, there must be:
- An order from the court; or
- A superannuation agreement, which is a financial agreement that deals with superannuation interests
If a superannuation account is split, it does not convert into cash unless the receiving spouse is aged 65 years or over and has retired.
In most cases, the superannuation is immediately rolled over into the receiving spouse’s superannuation account and remains there until they are legally able to access it.
If a couple of retirement age are separating, and one makes a threat to unilaterally claim their super, quick action is required.
In these circumstances, you may need to urgently apply to the court for an injunction which:
- Prevents your ex from accessing their superannuation entitlements, and;
- Directs the trustees of the super fund not to make any payments to your ex
In a recent case, the husband was about to turn 60 and would have been entitled to access his superannuation.
The wife had asked that he not access his super, and although he had been served legal papers, he did not appear at the court date.
Both husband and wife had agreed to attend mediation, however the husband’s 60th birthday was before the scheduled date for mediation.
The court therefore made an interim order that the husband be restrained from accessing his super, and that he appear at the upcoming court date to respond to the wife’s application.
It’s important to remember, that just like tangible property, superannuation forms part of the property pool of a relationship.
And if you have earned superannuation after separation and before your property settlement, that can be included in the property pool too.
It is important to protect marital assets after separation and this includes superannuation entitlements.
If you are concerned that your partner may access super before you have reached a property settlement agreement, contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected] to make an appointment with one of our family law specialists.
