Meredith Lawyers

Superannuation Splitting: How it Works in Property Settlement

During the process of a Family Law property settlement, it is important for parties to understand how the Family Law Act treats superannuation. It is treated as property, which then can be divided or “split” upon the breakdown of a marriage or de facto relationship, either by agreement or a “splitting order”.

The Meredith Family Lawyers can assist you in understanding how that process works.

Our Family Lawyers can explain to you how the law allows separating couples to value their superannuation and split superannuation payments, although this is not mandatory. Most importantly, splitting superannuation does not convert it into a cash asset – it is still subject to superannuation laws, for instance, it is usually retained until retirement ages are reached.

3 Options for splitting superannuation

The options available for couples seeking to split their superannuation include:

  1. Creating a formal written agreement which requires both parties to instruct a lawyer, who must sign a certificate stating that independent legal advice about the agreement was given.
  2. The parties can seek Consent Orders to split superannuation.
  3. If parties cannot reach an agreement, they can seek a Court Order to split superannuation.

If you are negotiating a property settlement with your former partner, and you are unsure about how this might impact on superannuation entitlements please contact our experienced Family law team at Meredith Lawyers. It is always in your best interests to speak to an expert and understand your rights and obligations from the beginning and avoid the potential for future conflict at a later date.

Obtaining valuation information for Defined Benefit Superannuation.

The Family law team at Meredith Lawyers can assist you and making enquires of determining the value of superannuation entitlements can require expert evidence.

It is wrong to assume that the value of superannuation is the total stated on your member benefit statement, particularly with respect to defined benefits.

Details about the value of the superannuation needs to be obtained from the Trustee of the Fund. This information can be obtained by providing the following forms to the Trustee:

  1. Form 6 Declaration;
  2. Superannuation Information Request Form; and
  3. The Superannuation Information Form.

The superannuation fund may charge a fee for providing the information, which is paid to them when you send the forms. Parties can access information about their former partner’s (and their own) superannuation in this way and can ask for a figure for the entitlements on specific dates, such as the date of commencement of cohabitation and separation.

Once the value of superannuation entitlements is known, the parties should be able to determine whether they need to ask the court to make a Superannuation Splitting Order.

Under the Family Law Rules parties need to serve the order sought on the Trustee immediately after filing the application seeking relief, and our Family Law team at Meredith Lawyers has extensive experience to assist you with this process.

At Meredith lawyers, our Family Law team can provide you advice as to the operation of the Family Law Legislation and the Court’s requirements in splitting your asset, including superannuation such as:

  1. For the parties to value the interest in respect of which superannuation benefits are payable before it orders that they be split in property settlement proceedings.
  2. To value the interest in accordance with any method set out in the Family Law (Superannuation) Regulations.
  3. To follow the methods provided in the Family Law (Superannuation) Regulations for determining the value of defined benefit superannuation interests in the growth phase.
  4. To provide for the Attorney General to approve in writing methods or factors for determining the gross value of a defined benefit superannuation interest that is in the growth phase. Applications may be made to the Attorney-General by funds for this purpose.

For more information, or for advice on seeking property settlement including superannuation splitting orders, please do not hesitate to contact our Family Lawyers at Meredith Lawyers to schedule a consultation on 1300 537 306.

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