Sarah talks you through superannuation and separation
Superannuation forms part of the asset pool and thus needs to be considered and dealt with appropriately.
There are a variety of circumstances which will affect how superannuation is divided after separation.
A party may have accrued a considerable amount of superannuation before commencing the relationship, and the pre-relationship superannuation may not form part of the superannuation available for division between the parties.
Alternatively, one party may have accumulated a significant amount of superannuation during the relationship while the other party did not. This is a common occurrence especially if one of the parties has spent some time out of the workforce to raise children.
In order to know what is appropriate in your individual circumstances you need to obtain legal advice.
Usually superannuation accrued during the relationship where children are involved will be considered to have been accrued by the joint enterprise of the parties. This means that if one party did not work during the relationship because they took time out of the workforce to raise children, then they are entitled to an equal share of the superannuation accrued by the party that did work.
Superannuation does not lose its character after a superannuation split has been made. The beneficiary of the superannuation split will not be able to access the superannuation any earlier than the party who accrued the superannuation as the superannuation will be transferred between the parties’ respective superannuation funds. The same regulations apply and the beneficiary of the superannuation split will not be able to access their benefits until they satisfy a condition of release.
In appropriate circumstances, parties can obtain superannuation splitting orders to apportion their superannuation between the parties. This can occur by way of a Court Order made by Consent Application or by the Court after a hearing.
If the parties agree that there is to be a superannuation split, the parties should obtain legal advice and would be best served to engage solicitors to prepare Consent Orders to be filed with the Federal Circuit Court.
Each superannuation fund has its own requirements in relation to implementing superannuation splitting orders and require notice of the proposed orders.
The nature of the superannuation interest itself also has to be considered in the making of a superannuation splitting order. The order will vary depending on whether the superannuation is a defined interest benefit or an accumulation interest.
If you would like to discuss your property settlement including how your superannuation assets are to be divided, please contact someone in our Family Law Team at Lindbloms Lawyers.