Is My Spouse Entitled To Half My Super?
Can my ex spouse really take my Super?
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At Your SuperSplit (YSS), 3 common questions, we are asked in relation to superannuation, or super as it is more commonly called, are:
For parties who are separated, is super an asset that can be taken into account in dividing their property between them?
If super is an asset, then how do we work out how to divide it fairly?
How does the agreed amount to divide have to be documented?
Read on further, where we will answer these 3 questions and provide more important information about superannuation and property division generally.
YSS traces its roots back over 30 years.
Once upon a time as traditional lawyers, we originally tended to think in black and white terms about solving legal issues.
That is until recently.
We realised that people wanted to resolve their property division, including superannuation with a safe, simplified and online experience, and at a fraction of the cost of attending an appointment with a bricks and mortar solicitor-aside from the inconvenience and expense of physical appointments.
So we created Your SuperSplit – a safe, online and affordable option for parties, who have separated, and want to resolve the final division of their property, including superannuation when they separate.
In just 15 minutes by completing an online form, you can take a massive step in moving forward with your life, and finalising the division of superannuation in a simple and fair manner.
Our mission is to bring more kindness and empathy into the client experience in law and treat people as human beings, not just a problem to be solved.
Part of that mission is to provide education to people so that they can make the best informed decisions about their future.
This article is part of that mission.
We also have great content on Divorce and some great tips on the Divorce process, making it as stress free and inexpensive as possible.
You can check this out HERE
What is superannuation?
Superannuation is the accumulated funds which are usually pad by your employer during the course of your employment resulting in forced savings toward your retirement.
Most Australians rely purely on their employer to make contributions although some will add extra money from their wages towards their super balance, or even set up their own self manage superannuation fund.
The upshot is that super generally, is an amount of saved funds just like a bank account, which is held until retirement occurs due to age or earlier due to illness.
Is superannuation classed as an asset of separated
The answer to this question has for a number of years been yes.
Just like money held in the bank or a household motor vehicle, super is an asset.
How we sort out or divide the super is explained below.
How do we fairly divide the superannuation?
Super is an asset so what needs to occur is that the parties must discuss and decide how to divide all of their assets including house or properties, motor vehicles, cash, shares, and the like, and also in dividing up all of these assets how much super each party should retain.
It is common that there is an unequal amount of superannuation held by each party.
For example, if one party had the major care of children, they may not have earned as much during their working life, and therefore not accumulated as much super.
The law around Super allows it to be divided or ‘split’ between parties.
It cannot usually be accessed as cash unless one party is at retirement age or eligible to access super due to permanent illness or injury.
Therefore, upon separation, what occurs is that a chosen amount of super can be moved out of one person’s super fund (eg Austsafe) and transferred to the other person’s super fund (eg Australian Retirement Trust) commonly called a ‘splitting order’.
To work out the fair division of super requires a review of what the Family Law Act indicates are the guiding principles of property division.
This can cross over with Property Settlement and splitting property.
You can read more about Property Splitting HERE this blog covers all you need to know.
In Very Broad Terms These Include
How long was the relationship?
Did either party contribute any substantial assets at the commencement of the relationship?
Did anyone make any major contributions during the relationship outside of ordinary earnings or undertaking household duties for example, receiving a lump sum, personal injury payment or inheritance?
What are the future needs of the parties going forward? In other words ,does one party have the cost to them of the children and/or is there a significant earning differential between the parties?
Is one party much closer to retirement than the other?
The court or family lawyers will commonly call such issues “swing factors” just like a pendulum.
Depending on how each of the factors are assessed, the court will way up a fair and equitable division.
Whether this is a 50/50 division or something more significant in the favour of one party depends on how big or significant the ‘swing factors” may be.
A common question we are asked is, If one party has worked and earned the superannuation, do they set an extra credit or ‘swing’ for that work and thus get to keep their super.
Generally, we would say that the answer is ‘no’, that is not the case, as the other party may have made a non-financial contribution, such as caring for the children during that earning period.
Sometimes if one party has significant super prior to the relationship, this will be taken into account in the balance or ‘swing factors’.
So How Do We Go About Documenting Any Agreed
Division of Superannuation?
The Family Law Act allows superannuation only to be divided in one of two ways.
The first, is called a Binding Financial Agreement, which is an agreement setting out the division of assets between the parties, this BFA is signed off by both parties with independent legal advice.
This means that both parties will need to consult with a solicitor to be advised as to whether the agreement complies with the legislation, and whether the proposed division of assets that has been agreed upon is broadly fair and meets with the principles of the Family Law Act.
The second way of documenting a super split is to file paperwork with the court.
This is called an Application for Consent Orders, which sets out both parties assets in one document, and how they have agreed to divide the assets in another.
This will include any division of superannuation.
Very specific wording is required to divide the superannuation from one party to another.
Both parties do not need independent legal advice to sign a Consent Order but the court does have a duty to keep the Orders which were agreed as fair.
By way of example, after a long relationship, if the parties have agreed that one party will keep nearly all of the assets and the other virtually nothing, the court may view that as unfair, and will not allow the Orders to be processed.
So, Is My Spouse Entitled To Half My Super?
Are there other assets, which the other party could retain, which could be balanced out by leaving all of the current superannuation held by the other party?
Did one party have significant superannuation prior to the relationship making it unfair to divide the super in half?
Is there a significant earnings differential between the parties?
Does one party have the majority care of younger children, meaning they have a greater future need, which could impact how super is divided?
Some Practical Examples
Peter and Angela married for 40 years.
Their two major assets are a home worth $1 million and Peter has $500,000 in superannuation.
Therefore, the total assets are $1.5 million.
After such a long relationship, an equal distribution of their assets is considered fair.
They decided to sell their home, and rather than divide superannuation, Angela will receive $750,000 from the sale proceeds of the house with the remaining $250,000 in cash, to be retained by Peter together with him, keeping all of his superannuation.
Ahmed and Katrina are married for 5 years.
Katrina was a lecturer at a University and had $300,000 in superannuation prior to the relationship which grows to $400,000 during the relationship.
Ahmed had virtually no assets when they met but together they have built up about $150,000 in other assets such as cash and motor vehicles.
Ahmed worked part-time and has virtually no super.
Between them there is $550,000 in assets and taking into account the contribution by Katrina of her superannuation in a short relationship, the court decides to give her 65% of the total assets with 35% to be retained by Ahmed.
This amount of 35% translates to $192,500.
If they split the general assets and keep $75,000 each, then Katrina will divide or split the remaining $117,500 to Ahmed and his super balance will be increased accordingly.
John and Selma married for 25 years and the children are now adults.
They have a house worth $750,000 million and an investment property roughly the same value.
John has worked throughout the marriage and has $370,000 in superannuation.
They both decide to keep one property each and, as the relationship was quite long, it was fair the superannuation is equally divided between them.
Therefore John transferred to Selma $185,000 of his super.
This would be a fairly common case of a spouse being entitled to half of the superannuation, particularly as the parties are now getting closer to retirement.
Conclusion & Further Advice
The Team at YSS have extensive experience in drawing up the necessary paperwork to divide superannuation and prepare the court orders.
We also strongly recommend that if there is some uncertainty or dispute as to how the assets can be divided, then the parties should attend a mediation which is a conference held by an impartial person who can assist.
This measure is often a better option than to litigate the dispute because it is far less costly for the parties who can then also retain control of the final outcome between them going forward.
If further assistance or advice is needed, then the team at YSS can be contacted
by email at firstname.lastname@example.org
or visit our website supersplitonline.com.au for further information and articles.
You can get the ball rolling by visiting the website to complete our online application.
We are happy to discuss your application at no initial financial obligation.
Best wishes the team at Your Super Split.