Marriage or de facto relationship breakdown – don’t forget the Superannuation

If your marriage or de facto relationship has had a breakdown superannuation splitting laws allow superannuation to be split between you and your partner.

Superannuation is treated as property by the Family Law Act 1975, but it is treated differently to other property because it is held in a trust.

A member or a non-member spouse can apply to the trustee of a superannuation fund for information (including the value) about the interest of the member for use in negotiating a superannuation agreement or in connection with family law proceedings in which the interest will be relevant.

Superannuation can be split by either:

  1. an order of the Family Court or the Federal Magistrates’ Court dealing with the superannuation interest; or
  2. a Financial Agreement that deals with a superannuation interest.

The Court Order or Financial Agreement must comply with the legal requirements set out in the superannuation splitting laws.

Parties to a Financial Agreement must obtain independent legal advice and their lawyers must sign certificates stating that they have been provided with legal advice. Financial Agreements will only be binding on superannuation trustees if the certificates are provided and attached to the Financial Agreement.

Some superannuation interests are held to be unsplittable if the value of the interest is too low.

An agreement or order to split payments says that when a splittable payment becomes payable then a certain amount of that payment is to be paid to the non-member spouse.

Usually an entitlement to a non-member spouse under an agreement or order can be transferred or rolled over into a fund created for the non-member spouse or another existing fund of the non-member spouse.

For more information please contact our friendly and professional team at Peter Speakman & Co on 9822 8611

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