Family LawWills and EstatesWhat Happens To My Super After Separation

July 20, 2017

It is not wisdom but Authority that makes a law.

Thomas Hobbes

Superannuation can easily be overlooked when thinking about separation. Is my superannuation going to be included as part of the property pool and if so, how much will I get to keep versus having to pay to my partner/spouse? These questions can often be extremely daunting, so in this blog, we look at what happens to your Superannuation when you separate or divorce.

Does superannuation form part of the property pool?

Superannuation forms part of your property pool. As with any other asset of the relationship, it is considered part of the assets of the relationship and therefore must be dealt with. In some relationships, it can be the largest asset attached to the relationship. Depending on your age, it can be highly desirable to keep as mush of your superannuation as possible.

What can happen to my superannuation?

Most commonly, one of two things will happen:

1.Parties will agree to not split superannuation assets

In this circumstance, both parties agree that the split of the other assets of the relationship make the split fair and equitable and that the super does not need to be split. This means that the super is only addressed to note that no action is being taken on it.

2.The superannuation is split

This means that the superannuation assets of the relationship are divided amongst the parties to the relationship. This can be done either be agreement between the parties, or by orders of the court. If the parties are splitting super by agreement, they need to ensure that the agreement is either made by stamped consent orders made by the court, or by way of financial agreement drafted by solicitors and whereby each party receives independent legal advice.

Before a superannuation split can be finalised, procedural fairness must be given to the trustee of the superannuation fund being split. This will mean giving the superannuation fund time to review the agreed split and agreeing to its terms. This will need to be completed before the orders can be made, or before your formally enter into the financial agreement.

 

What if my Ex is refusing to reveal their superannuation?

 

If your partner is refusing to reveal the size and nature of their superannuation, you can apply directly to the superannuation provider for these details. The Family Court website has template forms that can be used in these circumstances.

 

What about self-managed superfunds

 

Self-managed super funds can also be split, however it can be significantly more complicated. It is critical to remember that it is always the duty of the trustee of the self-managed superfund to act in the best interests of all members of the superfund.

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