The Family Law Courts can divide the superannuation entitlements of couples who separate. This is the same for couples who are married or in a defacto relationship.
What is the process of dividing superannuation?
The first step to dividing superannuation is to find out the value of your entitlement from the super fund Trustee. It is important to remember that you don’t have to divide the super, but it is an option for working out your property settlement.
You and your partner can reach agreement about all of your property matters, including super, and enter into Court Orders by consent or a Binding Financial Agreement.
You need to give your super fund notice of the proposed Orders before the Court makes any orders to deal with the super. You also need to ask the Trustee if it has any objection to the Orders being made.
You should get your own legal advice before deciding what to do. Super is treated differently to other assets in property settlements because often it can’t be accessed for many years.
Furthermore, dividing superannuation doesn’t convert it into a cash asset. It remains subject to the superannuation laws and is usually retained in the fund until retirement age.
Does your policy have a death benefit?
Another issue to consider if you are going through a property settlement is whether you have nominated your former spouse as the beneficiary of any death benefit payable under your super policy. If you have, then you should contact your super fund to discuss your changed situation and ensure that your nomination reflects your current wishes.
Seeking legal advice after separation does not mean you will end up in Court. Obtaining legal advice about your particular situation may help you to reach agreement with your former partner sooner rather than later and save you the cost and stress of Court proceedings.