Why Is Superannuation Important?
Superannuation is important as it's likely to be one of your largest matrimonial assets that needs to be split.
It's also important for you to understand the implications of splitting your superannuation as it could be the difference between you enjoying you retirement years and being financially independent or relying on others.
When Did Superannuation Splitting Become Possible?
In 2001 the Family Law Amendment (Superannuation) Act was introduced. In December 2002 the Superannuation splitting laws became effective and superannuation became regarded as property versus a financial resource. This means that superannuation is now treated as an asset that needs to be split during a property settlement.
I Have No Superannuation As I Was A Stay At Home Mum,
Does It Still Apply To Me?
It doesn't matter whose name a superannuation fund is in, it is considered to be just another asset that has to be split. The superannuation splitting laws apply to anyone who is or was married and want to finalise their property settlement.
I Separated Before The Superannuation Splitting Laws Came Into Play,
Do They Still Apply To Me?
If you have not made final arrangements regarding your property settlement the Superannuation splitting laws will apply to you - regardless of whether you divorced or separated before the superannuation splitting laws were effective on December 28th 2002.
I Have An Informal Property Settlement, Does The Superannuation
Splitting Laws Apply To Me?
If you don't have a formal legal arrangement about your property settlement then superannuation splitting laws will apply to you - even if you have an informal agreement with your former partner.
I Was In A De Facto Relationship Do The Superannuation
Spitting Laws Apply To Me?
These laws don't apply to de facto couples as they are commonwealth law and de facto property matters are covered by state laws.
What Is A Superannuation Agreement?
A superannuation agreement is a formal document that outlines how superannuation is to be split if or when a marriage breaks down. It can be created before, during or post marriage.
A separate agreement is required as superannuation interests are different to other property items and there are special rules about what it has to say.
How Do We Split Our Superannuation?
Step 1. Get a valuation
In some cases the valuation of some superannuation funds can be very complex and may require professional help. However, in most situations it's as simple as requesting a valuation from the trustee of the fund.
You will need to provide a completed copy the following forms to the trustee:
- Form 6 Declaration.
- Superannuation Information Request Form
The superannuation fund may charge a fee for providing the required information. This is paid when you send the forms.
These forms are available from the Family Law Court,
click here to download The Family Law Court Superannuation Information Kit.
Step 2: Reach an agreement
Once you agree on how you are going to split your superannuation you can enter into a formal written agreement. Once you have this you can then apply to the Court to obtain a court order.
What Happens Once We Have Come To An Agreement?
If you reach an agreement on how the superannuation is to be split, you can file it with the courts. If it meets all the appropriate legal requirements it becomes a binding document.
Once you have a binding agreement:
- The trustee of a superannuation fund is required by law to implement it; and
- The court is not able to make an order about the superannuation interest that is dealt with in the superannuation agreement.
What If We Can't Agree?
If you're unable to come to an agreement on how to split the superannuation you can apply to the court to have it make the decision for you.
Once the court makes its ruling the court order becomes binding and the trustee of your superannuation fund will be notified and required to make the necessary amendments.
What Happens If My Spouse Won't Give Me The Details?
It is in your best interest to have all relevant information regarding your matrimonial assets, including your ex's superannuation. If your ex is not co-operative you should talk to your legal team. They can request this information from your ex's lawyer and if required apply to the court to obtain these details.
What Is A Flagging Order?
In some cases you may want to postpone or 'flag' splitting the superannuation assets until a later date or until certain events take place eg after the other property items have been divided. To find out if 'flagging' would be appropriate to you, please talk to your legal team.
TOP
