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01
MAY
2014

How is Superannuation dealt with in a property settlement?

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Superannuation is usually dealt with as another asset of the separating parties. However, superannuation is a unique type of property and while its value is taken into consideration in a property settlement, it is dealt with differently to other assets. Specific laws govern how superannuation can be valued and divided after separation.

Both you and your spouse are obliged to provide each other with details of all superannuation funds you have in your name. You are also entitled to obtain information directly from your spouse’s superannuation fund regarding the value of the fund and other information which may be relevant to splitting the fund.

 

It is possible to obtain Court orders to split superannuation. An order can be made for a fixed sum to be split or for a percentage of a person’s entitlements to be split. The amount being split is not converted to cash and will be paid into the fund of the spouse receiving the money. The money being received will be subject to the superannuation laws, including restrictions as to when the money can be accessed. Accordingly, it is usually the case that the receiving party cannot access the money until they reach retirement age.

 

It is possible to reach agreement between you and your spouse regarding the splitting of superannuation. A Judge can also make superannuation splitting orders after a contested hearing.

 

The laws regarding superannuation are complex. There are legal requirements which must be complied with before the Court will make an order for the splitting of superannuation. This includes a requirement to notify the trustee of the superannuation fund of any orders you intend to have made. There are also different types of superannuation funds and they can be valued in different ways and it is important to understand the nature of a particular fund before reaching an agreement regarding superannuation.

 

It is important to obtain legal advice in matters involving superannuation. It is often advisable to also obtain financial advice from an accountant or financial adviser. In order to determine appropriate orders in relation to yours and your spouse’s superannuation it is necessary to assess all factors relevant to a property settlement to determine what may be appropriate in your matter.

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