When it comes to dividing property because of separation or divorce, one of the most contentious issues is superannuation. Should it be included in the property pool? How is it to be divided? There are many questions that arise and it’s a great idea to engage an experienced family lawyer to help you navigate your way through to a resolution that’s in your best interests.
Superannuation and property
The Family Law Act says that superannuation is a financial asset and so it is included in the pool of property to be divided between you and your ex-partner.
The pool of property is often considered in two separate parts, being:
- The non-superannuation pool.
- The superannuation pool.
This is because superannuation is considered separate from the other assets and liabilities of the relationship.
The general rule is that superannuation is to be divided equally between the parties for the time spanning the following key dates:
- The date of the start of the relationship; and
- The date of the order or agreement for the division of superannuation.
For example, if you had $30,000 in your superannuation fund when the relationship started, that amount would be excluded from the calculation.
There are some circumstances in which you may be entitled to a different percentage split of superannuation and the Family Court will consider what is fair and reasonable under all the circumstances. This means that when it comes to superannuation and property settlements, you should always seek legal advice.
How does superannuation get divided?
There are laws that specify how to value superannuation. The valuation is a necessary first step in working out how it should be split.
For the Court to accept the valuation, you will need to get certain information from your superannuation fund.
Can my superannuation fund refuse to split my super?
If the Court makes an order about superannuation splitting, it is legally binding on the trustee of the superannuation fund. Prior to the order being made, however, the trustee has the opportunity to object to or suggest amendments to the order. The Court has the discretion to take those things into consideration.
Do I need a lawyer?
Superannuation splitting can happen by:
- Financial agreement; or
- Consent orders (in which both parties agree to the orders that are made by the Court); or
- Application for property orders (in which the parties can’t agree and so an application is made to the Court to make a decision).
Regardless of how it happens, legal advice is essential to ensure compliance with all the different laws that regulate this area. It’s also a good idea to get legal advice to find out whether any of your own superannuation can be protected from being split.
Websters Lawyers has an outstanding team of family lawyers who can assist you with your superannuation splitting concerns. Contact us today for a free first consultation to find out how we can help you