When a marriage or de facto relationship breaks down, the asset pool can be divided between the parties, including the superannuation.
Superannuation is treated as property under the Family Law Act 1975.
It differs from other types of property because it is held in a trust. Splitting does not convert it into a cash asset and it is still subject to superannuation laws (for example, it is usually retained until retirement ages are reached). As and when, a payment from a superannuation interest becomes payable to the member spouse, a certain amount will be paid to the non-member spouse and the remainder will be paid to the member spouse.
In order to determine how your superannuation will be split, you must first obtain valuation information.
To facilitate this, you should provide the following forms to the trustee of the superannuation fund:
- Form 6 Declaration. This satisfies fund’s trustee that you are entitled to get the information for this limited purpose.
- Superannuation Information Request Form (accompanied by the appropriate Superannuation Information Form).
The superannuation fund may charge a fee for providing the information, and this is paid when you send the forms. The information from the trustee may be enough to value the superannuation. This is not always the case and you may need an expert to provide a further valuation.
The next step is to decide the method of splitting.
The superannuation splitting law lets separating couples value their superannuation and split superannuation payments, although this is not mandatory. You have the following options:
Option one: enter into a formal written agreement to split superannuation
This requires both parties to instruct a lawyer. Both parties 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.
Option two: seek consent orders to split superannuation, or
Option three: seek a court order to split superannuation
A formal written agreement or court order can be obtained by consent of the parties or as a result of a court hearing. Either way, you need to file an application with the Court.
Article by TBA LAW – Estate Planning, Conveyancing, Family Law, and Wills and Probate Lawyers for Melbourne and Regional Victoria
Protecting you, solving your problems. TBA Law is an accredited specialist in estate planning for families, and provides broader legal services for families and small businesses.
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