Dividing Superannuation as part of Property Settlement

16/11/2015

Since the introduction of compulsory superannuation payments most people employed in Australia now have superannuation entitlements. These entitlements are assets that need to be taken onto account in a family law property division.

At one time superannuation could not be divided in the same way that money shares, property or real estate could be divided. Superannuation entitlements of one spouse could not be transferred to the other spouse.  This is no longer the case and superannuation (in most cases) can be divided between husband and wife or between partners in de facto relationship which includes partners in a same sex relationship.

There are different types of superannuation but for the most part the superannuation entitlement can be spit or divided. This allows for greater flexibility and overall fairness in circumstances where property needs to be divided. This has an important application in particular where the superannuation entitlements are the most significant asset of the marriage or de facto relationship. In other words where there may not be a house or real estate or money available to divide.

In family law Courts the Superannuation splitting laws apply to:

(a)        married (or formerly married couples) who had not finally settled their property arrangements prior to 28 December 2002;

(b)        De facto couples in most states including New South Wales who separated on or after 1 March 2009.

Different provisions of the Family Law Act apply depending on whether you are or were married or are in a de facto relationship including a same sex relationship.

It is not necessary to be divorced for the splitting laws to apply.

Superannuation can not be divided on an informal basis.  The fund is held and controlled by the Trustee of the Superannuation Fund and can only be divided by the parties to a property dispute entering into a Superannuation Agreement or the Family Court or Federal Circuit Court of Australia making a splitting Order.  If there is a property settlement agreement, a splitting Order can be made with the consent of each party and be part of a Consent Order approved by the Court.  The Family Court or Federal Circuit Court can also make a Superannuation Splitting order an order after a Defended Hearing in which the Court decides the allocation of the property including superannuation as between husband and wife, or partners in a de facto or same sex relationship.

A superannuation agreement can be made before or during a marriage or de facto relationship. A splitting order will only be made when the parties have separated.

Because superannuation is a different to the common forms of property there are very particular laws that apply and any Superannuation Agreement or Splitting Order (to be effective and binding) must comply with the strict legal requirements detailed in the superannuation splitting laws and regulations.

Do not forget that Superannuation is often one of your most significant assets which should be properly considered in any property settlement agreement or dispute.

Please contact Watson & Watson on (02) 9221 6011. Our experienced family lawyers will assist you when it comes to dealing with all matters pertaining to superannuation.

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