Family LawProperty settlement

Can My Former Partner Access My Super After Separation?

By October 12, 2018 No Comments

Super is often the most significant asset of many families, after the family home.

It is possible that your former partner could access your super by way of what is called a ‘super split’.

The purpose of this post is to provide some background about super and family law generally and guidance about how a super split works.

How is super treated in family law?

Before 2002

Before 2002 the law did not allow separated couples to access each others super as part of a property settlement. This was because super was not considered an asset that could be divided.

The result was that injustice would occur for a number of difference cases. For example, one person ends up with all the cash assets (because they have no super) and the other person retains only super.  That super cannot be accessed by them until retirement so they are cash poor. Alternatively, in cases where there were no cash assets, the person who also had little to no super would end up with little to no assets. Then the other person retains their entire super.

After 2002

The Family Law Courts recognised this injustice and from 2002 super was treated as an asset for married couples. From 2009, the Courts also recognised super as an asset for de facto couples.

However, the treatment of super differs from other assets like the family home because it is held in a trust of a superannuation fund.

The new laws enabled the Courts to make orders to transfer super from one party’s superannuation fund account to the others account (otherwise known as a ‘super split’).

A super split does not convert it into a cash asset – it is still subject to superannuation laws (for example, it is usually retained until retirement ages are reached).

So, how does a super split work?

In most cases, separated couples will reach an agreement about how their assets, including super, will be divided. That agreement is then documented in Consent Orders and filed in the Court. If no agreement can be reached, parties will need to initiate Court Litigation. A Judge would then order a super split.

By example:

– John and Mary Smith were married for 25 years.

– They have 3 children together and all of them are now over the age of 18.

– Mary cared for the children when they were younger while John continued to work full-time. As the children got older, Mary returned to work part-time and is now working full-time.

– John and Mary jointly own a family home to the value of $650,000.

– John has super with A Superannuation Fund of $600,000.

– Mary has super of $50,000 with B Superannuation Fund.

– The total assets of the relationship to be divided are $1.3 million.

– John and Mary each receive advice from a family law solicitor about their entitlements and property settlement options. They agree to divide the total assets 50/50.

– John and Mark will each retain assets of $650,000. To achieve this:

– the equity in the family home will be split 50/50. It will be up to them as to whether one of them retains the home and pays the other out or the home is sold, and proceeds divided.

– Mary will receive a super split in the amount of $275,000 from John’s super with A Superannuation Fund to Mary’s B Superannuation Fund. So they each retain $325,000 in super.

For the super split to be carried out, John and Mary must instruct their solicitors to draft Consent Orders and once agreed, execute and file them in the Court.

What are Consent Orders?

Consent Orders are a collection of legal documents prepared to formalise an agreement reached by a separated couple.

Consent Orders can be made without either party (or their solicitors) ever having to physically attend Court.

The Court must be satisfied that the agreement is just and equitable before they can approve Consent Orders.

What legal documents are required?

An agreement including a super split will require the following legal documents:

  • Application for Consent Orders –

This document is where you and your former partner record your personal details so the Court can consider if your agreement is just and equitable.

  • Consent Orders –

This document is where the orders you are seeking the Court to approve (based on the agreement you have reached with your former partner) are recorded.

  • Superannuation Affidavit –

Before a Court will approve Consent Orders that include a super split, the parties must obtain the approval from the superannuation fund in writing. A letter from the superannuation fund as well as a formal valuation of the super must be attached to an Affidavit and filed with the Application and Consent Orders in the Court.

Would you like further information?

For further information on a super split, Consent Orders or any other family law matter, please contact us today or book an appointment online.

Disclaimer:

The information contained on this site is for general guidance only.  No person should act or refrain from acting on the basis of such information.  Appropriate professional advice should be sought based on your particular circumstances. 

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