In a property dispute superannuation is taken into account in dividing the property

Ever wondered in what manner superannuation applies to your property settlement?It's not just you. Many individuals thinking about separating from their spouse or de facto partner (or who have recently separated) ask this question: “Is my super taken into account in my property settlement? Is my spouse/ de facto partner entitled to some of my super? “ Should you be contemplating starting your property settlement , these are important questions to ask your lawyer.

In a nutshell, yes, your superannuation is applicable to your property settlement: it is taken into account in dividing the property of you and your spouse or de facto partner. Some people claim that they decided not to separate because they didn’t want their spouse/ de facto partner to keep any of their hard-earned super. However, on the other side of the coin, one person has commented that they hired competent and experienced family lawyers who advocated for them and reached a fair outcome and division of property including super.

Superannuation splitting law

The superannuation splitting law treats superannuation as a different type of property. It lets separating couples value their superannuation and split superannuation payments, although this is not mandatory.

Splitting does not convert it into a cash asset – it is still subject to superannuation laws (for example, it is usually retained until retirement ages are reached).

Options for splitting superannuation

Separating couples may either:

  • enter into a formal written agreement to split superannuation
  • A formal written agreement requires that both you and your former partner instruct a lawyer who must sign a certificate stating that independent legal advice about the agreement has been given. Once this agreement is made, you do not need to go to court. The agreement is not registered in court and you must be careful that each of you retains a copy.
  • seek consent orders to split superannuation, or
  • seek a court order to split superannuation (if you cannot reach an agreement with your former partner)
  • Even when an application is made to a court, it is possible to reach an agreement at any stage without the need for a court hearing.

For legal advice from our experienced team of family lawyers about how superannuation is treated in your property settlement or any other family law issue, please contact our family lawyers.

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