The law treats superannuation as a different type of property when separating couples are faced with valuing and splitting their superannuation payments. While the splitting of this ‘property’ does not directly translate into a cash asset, it is still covered under the Family Law Act and the applicable superannuation legislation and it is important for you to understand how this works if you are undergoing a separation or divorce from your partner.
Valuing your superannuation
In order to split your superannuation, you must first obtain valuation information. This can often be obtained from your superannuation statement. However, in some instances this may require a bit of administration work and there are a few forms you may need to fill out. When you send the forms, your superannuation fund may charge a fee for providing certain information and this will be paid to them when you fill out the forms.
Superannuation can be valued in various ways as there are different types of superannuation and you can find these provisions in superannuation splitting legislation. Exceptions include the use of self-managed superannuation funds which usually need to be assessed by an accountant, or where the Attorney-General has approved a fund using an alternate valuation method.
How to split superannuation
There are various options in terms of how to go about doing this. You can:
- Obtain a Consent Order filed in the Family Court
- Create a Financial Agreement which requires both parties to obtain independent legal advice from their lawyers. This must be in a written agreement
- In the instance that Consent Orders or an agreement cannot be met between you and your former partner, you may need to obtain a court order to split superannuation.
Informing your fund
You must inform your superannuation fund when you are seeking court orders so they are aware of the situation. This is generally referred to as providing ‘procedural fairness’, so that the trustee has the opportunity to consent to the Orders, or to attend a court hearing and have the option to object to any orders that are raised, as the orders will bind the trustee of the superannuation fund.
Splitting superannuation can be a very complex area and it is best to have a qualified family law solicitor to assist you in obtaining the relevant valuation information and draft the proposed Orders or Agreement. Contacting a family lawyer may help put your mind at ease and allow them to help guide you through the process. It can sometimes be daunting to have to deal with these kinds of issues and a professional will help alleviate any of your worries or concerns.
At Australian Family Lawyers, we have a breadth of experience in the family law space, including dealing with issues such as separation, children’s matters, spousal maintenance, property settlements, relocation and more. Please do not hesitate to contact us for more information to find out how we can help you today.