Superannuation is a class of property they can be divided between spouses.
Since 2001 superannuation has been able to be split between the parties to a marriage. In March 2009, legislation was introduced to enable de facto couples to be able to split superannuation.
As part of a property settlement, parties can now split superannuation by agreement. A court make an order about whether superannuation should be split from one party’s superannuation fund and paid to the superannuation fund of the other party.
How do I get information about my spouse’s superannuation?
The Family Law Superannuation Regulations and the Family Law Act allows the trustee of a superannuation fund to provide certain information about either your superannuation interest or your spouse’s interest even if you are not a member of your spouse’s fund. This information can then be used to negotiate a split of superannuation entitlements.
An application is made to the superannuation fund to provide the current balance and other necessary information about a superannuation entitlement. Most funds charge administration fee to provide this information. It is necessary to obtain up-to-date information about superannuation as account balances can fluctuate with changes in the financial markets. A superannuation fund is prohibited from telling another party that an application has been made for information about their superannuation entitlement.
Can’t we just use the statements from the super fund?
Fund statements are often issued only a few times per year. As the value of “accumulation” superannuation funds are generally linked to changes in the financial markets, up-to-date information is essential.
Some superannuation funds need to be valued by an actuary as the value of some funds is based on a complicated formula involving salary, contribution rates, and period of time a person has been a member of the fund. There might also be other benefits that may not be payable until retirement that can affect the current value. These types are generally referred to as “defined benefit” superannuation interests.
It is important to obtain accurate information about superannuation. It can affect the outcome of your property settlement. In one matter I was involved in, the parties had agreed to use figures from their superannuation funds that had been obtained from a year end statement. However, on obtaining information from one of the parties’ superannuation funds, the figure being used by the parties was inaccurate. The fund’s earnings had grown significantly within a three-month period as a result of the trustee changing its investment strategy. This added tens of thousands of dollars to the property pool.
Superannuation is a complex area and you should obtain independent financial advice from a licensed financial planner or investment advisor if you are considering whether superannuation should be split as part of your property settlement.
It is important to remember that unless you meet the criteria to access your superannuation early, you may not be able to access any funds received as part of a superannuation split.
This article contains general legal information and is not a complete statement of the law. You should obtain specific advice about your own circumstances and not rely upon this article until you have done so. Best Wilson Buckley Family Law Pty Ltd will not accept any liability or responsibility for loss occurring (including negligence) as a result of any person or entity acting or refraining from acting in reliance on any material contained herein. Information current as at date of posting.
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