Is superannuation ‘property’ in divorce?

Posted by: Davey Law   /   Comments Off on Is superannuation ‘property’ in divorce?

Superannuation is often a significant asset to be factored into property division, along with other tangible assets such as the family home.

Under family law, both spouses’ superannuation entitlements form part of the asset pool that is to be divided upon separation.

A super split to one spouse can balance assets retained by the other as part of property settlement. For example, a separating couple might agree that the family home will be transferred to one spouse, with the other receiving a comparable portion of superannuation.

Splitting does not convert the superannuation into a cash asset. The split amount will still be subject to superannuation rules, and will generally be rolled over to an account in the same superannuation fund, in the name of the spouse receiving the split.

Essential steps:

  1. Obtain the value of the superannuation. This is usually done by completing the relevant forms and sending them to the superannuation fund trustee. The valuation of some types of superannuation, such as a defined benefit or a self-managed super fund, can be complex and the advice of an expert should be sought.
  2. Choose the splitting method. Superannuation can be split by Consent Order or by a Superannuation Agreement which meets the requirements of the Family Law Act.
  3. Provide the superannuation fund trustee with what is called ‘procedural fairness’. This means that the trustee must see the terms of the proposed super split and be given the opportunity to object. This step ensures that the proposed terms of the super split can, in fact, be carried out by the party required to implement them – the trustee.
  4. Once the Consent Order has been sealed or the Superannuation Agreement executed, provide a certified copy to the superannuation fund trustee.

An experienced family lawyer can advise of your property settlement options including superannuation splitting, and can draft the appropriate documents.