Superannuation and Divorce
People are often surprised to learn that superannuation forms part of the property pool available for division upon separation or divorce.
Superannuation can be a significant part of a property pool. The starting point is to find out how much super each party has. It may also be relevant to look at how much superannuation each party had at the commencement of the relationship and at separation.
If the superannuation is an accumulation account, then a current statement will confirm the balance. If, however, the account is a defined benefit account then a valuation will be required. A family lawyer can assist you to obtain this information. You ex partner will not know that you have requested it.
A “super split” in a property settlement can only be made pursuant to a court order or a financial agreement. It is very important that you get legal advice about splitting superannuation from a family lawyer. The orders are complicated and are best drafted by an experienced family lawyer. The super fund must be given at least 28 days notice before any super splitting orders are made. They may suggest amendments or indicate that they approve of the orders.
If a super splitting order is made this means that an amount of super is rolled out of one party’s superannuation account into the other party’s account. For example, the wife might receive $50,000 from the husband’s superannuation. This means that $50,000 will be rolled out of the husband’s superannuation account into the wife’s superannuation account. The wife will not be able to access this superannuation until she meets the rules of the superannuation fund.
There may be tax consequences that flow from splitting superannuation. You should ensure you seek independent financial and tax advice and family law advice before entering into any agreement or Court Order with respect to superannuation.
Defence Force / Military super / ADF
If you are in the Defence Force and are going through a separation, it is essential that you get legal advice from a family lawyer who is an expert in this area. At Cairns Family Law Group, we are experienced in dealing with the Defence Force Retirement and Death Benefits Scheme (DFRDB), Military Super (MSBS), ADF Super and Invalidity Payments. The first step will be to have a Superannuation Information Form (“SIF”) completed by your super fund and then have your superannuation valued by an expert. You should get information and a valuation to work out how much of you had at the beginning of your relationship, how much you had at separation and how much you have now.
Your super or pension is likely to be a significant financial resource or asset that will form part of the property pool that will be available to be split during your family law property settlement. This is a complicated area of law and you need an expert family law advice. It is important to understand how your superannuation policy works, whether it is DFRBD, MSBS or ADF Super and Invalidity Payments. Whether it is in the growth phase or the payment phase. We will work with the right people to help you answer these questions.
It is important for you to understand how to protect your assets in the unfortunate event that your relationship breaks down, you are deployed overseas, you lose capacity or pass away.
You should seek legal advice about the family law and estate planning issues most applicable in your individual circumstances. At Cairns Family Law Group, we are experts in superannuation at separation and divorce.
