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How Superannuation is Split in a Divorce, Taking the Axe to Superannuation

Can Superannuation Be Considered At All?


Superannuation is treated as an asset of the parties upon a separation – just like a car or a house.

 

Superannuation usually has a significant value and will need to be taken into account by separating parties when dividing their assets.

 

Superannuation is usually valued at the time when it is divided. 

 

This could be the date the parties reach an agreement about their asset division, or the date of a trial where the asset division is disputed and determined.

 

The value at the date of separation is not usually relevant unless one of the parties has added extra funds to the superannuation post separation from their own funds or efforts.    

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When you are a couple who has separated, and wants to move forward with your lives, dividing your property, particularly superannuation, should be simple and straightforward. 

 

On many occasions, this is not the case and how superannuation, or super, is split or divided can often be the biggest hurdle to overcome.

 

That’s Where Your SuperSplit Comes In

 

Your SuperSplit was created to provide Australia’s first online end to end service by a law firm, dedicated solely to dividing superannuation, safely and from the comfort of your own home.

 

The team at Your SuperSplit has assisted thousands of individuals in obtaining their divorce so they can move forward with their lives. 

 

Our Team can also assist in the division of property upon marital or de facto separation, and in particular the dividing of superannuation.

 

Keep reading to find out how superannuation is dealt with upon separation. 

Your Online Legal Group Staff

What Is Superannuation and Where Does It Come From?

Superannuation is the money held by a complying superannuation fund, or sometimes a self-managed superfund on behalf of an individual person.

 

Superannuation is usually accumulated by each party to a relationship due to payments by an employer to an organisation called a compliant superfund – for example Austsafe or Unisuper.

 

It is paid into the fund at a fixed rate based on your income currently at 11% as from 1 July 2023.

 

A person can elect to pay extra money into their superannuation fund above that amount.

 

Sometimes people set up their own fund called a self-managed superfund, and a married or de facto couple both may contribute to this fund although they will have individual balances.

 

Superannuation is generally accumulated until retirement age and cannot be accessed as cash upon a property settlement by either party.

 

The Different Types Of Superannuation.

Superannuation usually comes in two types of account.

 

By far the most common account is an accumulation account, held by most Australian employees.

 

This account is just like a savings account with money deposited and interest earned on the investment, less fees, added up over time .

 

The other major type is called a defined benefit fund, which is held by some commonwealth or corporate employees.

 

This value of this type of fund is determined by how much money your employer has contributed, how much the employee has contributed, the length of work service, and the salary level upon retirement.

 

Most defined benefit fund schemes are now unavailable to new members.

 

For most Australians, the value of their Super is their current balance of one [or more] of their accumulation accounts held by a super fund.

 

Superannuation In The Payment Phase

What Is The Payment Phase?

 

If a party has retired, due to eligible age or illness, they may have elected to receive payment of their Super, as a pension or ongoing payment rather than a lump sum. 

 

In these circumstances, the lump sum value of the Super may be irrelevant, and the court will put the superannuation into a separate pool – called the two pools approach. 

 

In simple terms this means the other assets such as house, car, investments, and cash are adjusted to reflect that one party is receiving the significant benefit from a superannuation ongoing income stream. 

Super splitting assets

A Pratical Example Of The Two Pools Approach

John and Margaret decide to separate.

 

John has retired and receives his superannuation as an ongoing pension of $500 per week for the rest of his life.

 

Margaret cannot yet access her super of $100,000 as she has not reached retirement age.

 

Including Margaret‘s superannuation both John and Margaret, have a combined $600,000 in assets. 


Because John is getting a pension of $26,000 per year via his super the court has adjusted the split or division of their other assets as $350,000 to Margaret and $250,000 to John to allow for his beneficial pension payments which will continue.

An Overview of What We Know So Far 

We know that super is an asset and is added to the combined pool of assets of a married or defacto couple, although if it is being paid out as a pension, then it is more likely to be treated as an income stream.


We also know its value is usually the actual balance held as noted by a superannuation fund statement– unless it is one of those pesky defined benefit funds.


Finally, what can be done with the superannuation balance/s of each party?


How Superannuation is split upon separation 


There are a number of options about super division or splitting when resolving property settlement.


One option is that both parties will keep their respective superannuation and divide the other assets to reflect a fair, referred to as “just and equitable“, settlement. 


The other major alternative is that one party splits or divides some or all of their superannuation to the other spouse. 


This super split means a reduction in the superannuation balance of one party, and an equal increase in the superannuation balance of the receiving party.


This formal process is called a super split.

Money splitting into superannuation

When Should A Super Split Occur?

The Practical Dividing of Superannuation 

 

A super split usually occurs when one party has a much larger balance than the other, or, one party may wish to keep the former matrimonial home, and there needs to be a superannuation adjustment to even things up.


Working out a fair split of super requires a look at all of the assets, what financial and non-financial contributions each party has made before, or during the relationship, including matters such as inheritances, and then, lastly, what each parties future needs, might be taking into account the earning capacity, health, or the expense of raising children .


Whilst the split or division can be a percentage of one parties share, it is usually easier to work out a fixed lump sum amount to be divided

How A Super Split Is Documented

Division of Superannuation- the paperwork 

 

Unfortunately, dividing superannuation can be a bit tricky.

 

Superannuation can be divided under the Family Law Act either by a written binding financial agreement or BFA or more commonly by the filing of a consent order/s with the court, being the Federal Circuit and Family Court of Australia. 

 

A BFA requires each party to receive independent legal advice and is an agreement specifically drawn up. A BFA may cost upwards of $3,000 in legal fees to prepare and have signed with a traditional law firm.

 

The court Consent Orders and associated Application do not require independent legal advice but must be approved by the court as being just and equitable or fair. 

 

This is because the court will ensure that one party is not “taken advantage of” by the other.

 

Prior to lodging the court order with the court the superfund who is transferring the funds, must approve the wording used to divide the sum agreed. 

 

The wording to be used is very specific, and the name of the fund must be accurately stated.

A Practical Example

 

Isabell and Ahmed decide to separate. 

 

Isabell has worked as a doctor and has $300,000 in super. 

 

Ahmed has $200,000 in super as he has stayed at home for a few years with the children who are now adults. 

 

They have sold their former house and have received $500,000 in the net sale proceeds. 

 

They would like to divide the assets to allow Ahmed to have 60% of the total value of all of the assets and superannuation as Isabell is earning more than Ahmed. 

 

They decide to split the cash and take $250,000 each. 

 

As there are total assets, including super of $1 million Ahmed will need another $350,000 of super to get to 60% of all their assets including super.  

 

Because Ahmed already has $200,000 in his super account Isabell will split or transfer $150,000 from her fund to Ahmed’s super fund so they can move forward.

Where Your SuperSplit Can Help

The Role of Your SuperSplit

 

Using Your SuperSplit allows you to complete a simple online form from the comfort of your home, and then allows you to choose the level of assistance needed – from a partly DIY option to a complete end to end service option. 

 

The court orders are prepared to accurately record the amount of superannuation being divided, or split, so separated couples can move forward with confidence.

 

This service by Your SuperSplit is delivered at a far lower cost than you would expect when generally consulting with a “ bricks and mortar “ solicitor or traditional law firm. 

 

Why?  

 

Because Your SuperSplit is wholly online and specialises with refined systems and processes from many years of experience in preparing the paperwork needed. 

 

So you can have confidence in the service provided.

Taking Action To Finalise Your Superannuation Division

 

Being unsure as to dividing your property, including superannuation, should not hold you back from proceeding with moving forward with your life. 

 

If you wish to obtain further details or information about dividing your superannuation of property generally then contact us

 

 email on help@supersplitonline.com.au 

 

www.supersplitonline.com.au where you can complete our online application and we will then contact you at no financial obligation to discuss your individual circumstances.

Best wishes from the Team at Your SuperSplit.

 

 

 

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