However, given that superannuation has some different characteristics compared with “non-superannuation assets”, such as property, shares or savings, special care should be taken when determining how it is to be divided in a separation.
Some important things to consider when dealing with superannuation include:
- What superannuation did you and your ex-spouse each have when you commenced your marriage or de facto relationship? Often, only superannuation that is accumulated from the start of the marriage/relationship is split, but this may not always be the case.
- Has either person withdrawn from their super early? Why was there an early withdrawal and what were the funds used for? The answer to these questions may well determine how the withdrawn super is to be accounted for.
- If there is a Self-Managed Superannuation Fund (SMSF) involved,
- Has your ex-spouse reached retirement age, or is there any other risk that they could withdraw from their superannuation? If you are concerned that they may draw down on their super and disperse the funds, you should consider whether to apply to the court for a “superannuation flagging” order, to prevent that from happening.
- Has the superannuation already been converted into a pension? Once the superannuation is converted and becomes a pension (i.e., an income stream rather than just an asset), it will need to be treated differently. Not every type of pension can be split and so it is important to seek legal advice on how to approach a pension.
The laws governing the treatment of superannuation and pensions in a marriage/relationship breakdown are very complex. In order to split super or pensions, a specific process needs to be followed, and complex documents need to be drafted to ensure that the split can actually occur. The superannuation fund needs to be notified and be satisfied with the drafting in order to process the split.
Our experienced lawyers frequently assist clients with superannuation and pension interests in family law matters. We have some of the best lawyers in Ringwood and Mount Waverley who can carefully guide you through the process to ensure that you receive your legal entitlements and that your interests are protected.
Please contact us on 0421 397 316 or at jlok@oikosfamilylaw.com.au for an obligation free chat.
