How is superannuation considered in property settlement proceedings?
Superannuation is considered to be an asset which is included in the property pool available for distribution following separation. This means that a party’s superannuation entitlements can be split.
If you and your former partner agree to split one party’s superannuation entitlements, then the party who receives the superannuation entitlements will receive them as super. The receiver will not have access to the superannuation entitlements as cash, rather, the entitlements will be rolled over into a superannuation account held in the receiver’s name.
How does the superannuation split work?
Before an agreement to split superannuation entitlements is able to be formalised by way of a Consent Order or a Binding Financial Agreement, a superannuation fund must be provided no less than 28 days written notice of the proposed agreement. The trustee of the fund has an opportunity to object to proposed superannuation splitting orders.
Usually, if an objection is made by the superannuation fund, it is simply a matter of amending the drafting of the proposed agreement / orders. Once this has occurred, the agreement can be finalised or the orders can be made by the court.
Once you have your finalised agreement or orders, a copy of this document is provided to the superannuation company so that they may effect the split. The receiving party nominates a superannuation fund which their entitlements will be rolled into. Once the superannuation fund has all required documents and information in hand, they will affect the rollover.
Any advice is general in nature, may not apply to your specific situation and must not be relied upon as legal advice. In instances of family law, situations should always be evaluated on a case-by-case basis. As such, we always recommend you seek specific advice tailored to your circumstances. Please feel free to get in touch if you would like to discuss your matter.
