In Australia, superannuation is considered property and can be divided between separating couples under the Family Law Act. However, it's treated differently than other assets because it's held in trust and often not immediately accessible.
At Clarity Legal Group, we simplify the process of dividing superannuation in separation, ensuring transparency and fairness throughout.
How Superannuation is Classified
Superannuation is a unique asset because it remains in a fund until retirement. While it's not 'cash in hand,' it still forms part of the total asset pool to be divided. Under family law, it must be disclosed, valued, and considered during settlement.
Options for Splitting Super
1. Superannuation Agreement: This is a binding financial agreement made before, during, or after the relationship.
2. Consent Orders: These are court-approved agreements made by both parties.
3. Court Orders: If parties can’t agree, the court will decide based on fairness.
The Splitting Process
To split superannuation, parties need to:
- Obtain up-to-date fund valuations (Form 6 from the super fund)
- Draft and lodge a superannuation agreement or include it in consent orders
- Send a copy to the fund trustee
It’s critical to get legal advice when drafting these agreements to avoid mistakes that could make them unenforceable.
Factors the Court Considers
The court evaluates the overall financial position, including:
- Length of the relationship
- Contributions (financial and non-financial)
- Future needs of each party
Super is considered alongside other assets and liabilities, ensuring the final settlement is just and equitable.
Tax and Access Implications
Even though super can be split, it still remains in the super system until retirement age. Early access is generally not permitted unless under specific hardship conditions.
Contact us today to book a reduced fee initial consult to ensure your super split is done right.
Office: Suite 3.4, Level 3, 328 Scottsdale Drive,
Robina, QLD, 4226
Postal: PO Box 4449,
Robina Town Centre, QLD, 4230
Phone: 1300 966 833
Email: admin@claritylegalgroup.com.au
ABN: 080 377 3261
