By Andrew Banna, a Principal of Matthews Folbigg, in our Family Law Group.
Superannuation falls within the scope of property under the Family Law Act. Upon the breakdown of a relationship, the superannuation splitting laws provide for the possibility for your superannuation to be divided between you and your ex partner as part of your property settlement with a separation lawyer. However, as superannuation is held on trust, different rules apply to how this type of property can be divided. Dividing your superannuation will not automatically turn the interest into cash that you can take home with you, rather, the interest will remain subject to the laws of superannuation. The options available to the non-member spouse that is receiving the split include:
- Leaving the super benefit in the member’s super fund in their own name
- Rolling over or transferring the super benefit to another fund
- Apply for the benefit to be released to them if you have reached the conditions of your retirement
Your superannuation can be split either by a Court order or by a superannuation agreement which can be prepared by your separation lawyer. Couples can make a superannuation agreement before, during or after their relationship. In this way, couples can agree on how their superannuation should be divided between them.
If you cannot agree on how to split your super, the Court can make an order that determines how to split your super and what your interest will be.
To file an application in Court, you will need to file the following documents with the assistance of your separation lawyer :
- Superannuation Information Kit
- Initiating Application
- Financial Statement
- Affidavit
Once an Order is made, your separation lawyer will need to serve a sealed copy of your orders on the Trustee of the super fund.
Valuing the Superannuation Interest
The first step to splitting super either by court order or agreement is to value the superannuation interest. Either you or your partner can request information from the trustee of your super about the value of your superannuation interest.
Types of Super Splitting
Your agreement or court order can split superannuation by either a base amount (that is a dollar amount) or by a percentage of the value of your super interest.
For more information, visit our page on Separation and Divorce.
For advice contact us on 1800 300 170 or email us at famlaw@matthewsfolbigg.com.au
