For many couples in this day and age, aside from the family home, superannuation is likely to be the most valuable asset that they have.
Superannuation treated like property in Family Law
In Family Law matters for both married and de facto couples, superannuation is treated as if it were property. This means that the Family Law Act treats the parties' superannuation interests in a similar way to other types of property.
There are provisions of the Family Law Act which set out how the division of property is to occur following the breakdown of a marriage or de facto relationship. Those provisions also deal with superannuation after separation, and where appropriate the division of the parties' superannuation entitlements. This process is known as "Super Splitting".
In many property settlements, the superannuation interest of one party is "split" and a portion of that party's superannuation interest is transferred to a superannuation interest in the other party's name. That interest may be in the same fund or another fund. There are specific procedural requirements that must be adhered to in order for this super split to occur.
There are a number of different types of superannuation funds. There are government regulations which apply to these funds and the funds themselves often have different rules about what you can and cannot do.
Rules for superannuation in Family Law
There are rules which set out how an interest in a superannuation fund is to be valued for Family Law purposes. This is particularly important for Defined Benefit Superannuation Interests, which are usually interests that have a pension component to them rather than just a lump sum. The values of these interests need to be calculated pursuant to a formula which takes into account the value of the pension that the individual will receive over their lifetime.
This is a complex area of the law and advice is strongly recommended to undertake this process. At Andersons, we can advise you about your respective rights and entitlements whether you are married or living in a de facto relationship including a same sex relationship.
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