“Super counted if couples split”

As family lawyers we are often asked questions about superannuation and how this will be dealt with by the Family Courts.

There is often confusion about whether the superannuation is part of Family Law property claims and how it is viewed by the Courts when dividing the family assets. Today’s article revisits the question of superannuation in Family Law property matters.

Do the laws apply to me?

Since December 2002, the Family Courts have been able to divide the superannuation entitlements of married couples who separate. Since 1 March 2009, these laws have been extended to eligible de facto couples. This means that whether you are married or in a de facto relationship, the issue of superannuation is relevant to a division of property after the relationship has ended.

What is the process of dividing the super?

The first step is to obtain information from the super fund’s Trustee about the value of the super entitlements. You and your partner may reach agreement about all of your property matters, including the superannuation, and enter into court orders by consent or a binding financial agreement. It is important to note that you do not have to divide the superannuation. This is looked at in the context of the overall property division and is one of many options for resolving the financial relationship with your former spouse.

If you cannot agree between yourselves, then the court can make orders about the superannuation after a contested hearing.

The Trustee of the super fund needs to receive notice of the proposed orders before the Court makes any orders, whether by consent or after a hearing. The Trustee needs to advise whether it has an objection to the orders being made.

You should get your own legal advice before deciding what to do. Superannuation is treated differently to other assets in property settlements because often it cannot be accessed for many years. Splitting super does not convert it into a cash asset. It remains subject to the superannuation laws and is usually retained in the fund until retirement age.

If I have made a new Will since separation, does that cover my super?

Not necessarily. You need to check whether you have nominated your spouse to be the beneficiary of any death benefit payable under your superannuation policy. If you have, then you should contact your super fund to discuss your changed situation as soon as possible after the end of your relationship.

Seeking legal advice about your situation does not necessarily mean you will end up in court. Most matters are capable of resolution without involving the Court. Expert advice may help you to reach an agreement with your former partners sooner rather than later.

If you would like further information please contact Andrew Crooke or a member of our Family Law Team or call 07 4616 9898.

 

Prepared by Andrew Crooke

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