Family Law and Superannuation Pt 1- Property Settlement

TGB’s family law team writes about superannuation splits in divorce settlements.

If you are reading this, you are probably in the process of dividing your assets after the breakdown of a relationship or marriage.  No doubt you are aware that all your assets and liabilities and financial resources should be taken into account, whether those items are owned just by you or your partner or by you and your partner together.

But what about your superannuation?

The simple answer is that superannuation should be considered to be an asset just like any other asset.  In most cases it gets lumped into the asset pool and divided up in whatever way is appropriate in the circumstances.

But things are never that simple. There are also many different factual situations which can arise in relation to superannuation.  One partner may have accrued a considerable amount of superannuation before commencing the relationship.  Or one partner might have accrued superannuation during the course of the relationship while the other partner has not.

In order to know what will be appropriate in your circumstances you will need to take legal advice.

But one principle your lawyer will consider is that superannuation accrued during your relationship (especially when children are involved) has been accrued by the “joint enterprise” of both partners and that probably means that if a partner did not work during the relationship (because they undertook domestic or child rearing responsibilities) they are probably entitled to a portion of the superannuation of the partner who did work.

The law allows for superannuation to be “split” and a portion of it divided off and transferred into the name of the other partner.  That does not mean that they will be able to access it any earlier than the partner who accrued the superannuation; all the same regulations will apply to that portion that has been split as to the original interest.

Superannuation splitting orders are very common in family law property settlements.  If you or your partner have superannuation and your relationship has broken down you should obtain legal advice to find out what your entitlements might be.

Part 2 – Unknown Super Amounts

TGB is South Australia’s largest family law firm, with new offices in Western Australia and Northern Territory. For advice about your family or divorce issue, contact your nearest TGB office.