Family Law: Superannuation & Separation
First things first – superannuation is property!
The first thing to know about superannuation in the family law context is that it is treated as a special type of property under the Family Law Act. It is an asset, that is held in trust until you have met a condition for it’s release and is always taken into account when considering a division of property in family law.
Does that mean super is considered as cash in the family law property settlement?
No. Super splitting will not make the super into a cash asset. It remains subject to the applicable superannuation laws and is generally transferred from one super account to another. For example, from the member’s account to the non-member’s account.
The process of transferring super as a result of relationship breakdown
Superannuation entitlements can be transferred between partners as a result of a relationship breakdown. The (general) steps are:
Calculate the total value of the super accounts
You will need to identify the amount available for division and then discuss what can be agreed is a fair division, in the context of your overall property settlement.
You can ask your partner’s fund to provide you with information about the value of their super. Request this by filling out a form on the Family Court of Australia website or we can assist you with this.
Seek legal advice
If you don’t already have a binding financial agreement or court orders that outline how superannuation is to be divided and you will need to seek legal advice to determine super is to be divided.
Split the super
To effect the super split, you will need:
- Confirmation from the trustee of the super fund that they approve of the proposed split from the member to the non-member; AND
- A valid binding financial agreement pursuant to the Family Law Act. There is a specific process to executing this document and both you and your partner must have your own lawyer; OR
- A court order, made by consent; OR
- If you cannot reach agreement, you can make an application to the court and ask them for an order to split superannuation.
Superannuation splitting can vary and is complex. We encourage you to seek family law advice about your options that is specific to your individual circumstances.
We also encourage you to seek advice from a financial planner. They can help understand and plan for any possible impacts on your long-terms finances or capital gains tax implications.
Need more information regarding a property settlement? Please contact our office.