Superannuation has become a key asset in Australian property settlements. It is a critical income stream for most Australians’ financial future.
However, super accounts aren’t like other forms of property. Since superannuation interests are held in trust, specific legislation is applied to determine how it may be split.
This article will explore how superannuation in divorce fits into property settlements.
Key takeaways
Superannuation provides retirement savings for Australians.
Super accumulates through employer contributions.
The growth phase accumulates value through contributions and investment returns.
The payment phase releases the funds in increments or a lump sum.
Superannuation splitting allows super interests to be divided into property settlements.
Splitting can occur through a financial agreement, consent order or after a court hearing.
Super accounts must be valued before splitting.
You must file forms in the superannuation information kit for the necessary information for valuation.
Australia’s Superannuation System
Superannuation contributions are the primary way for Australians to save for retirement. Employers must make superannuation guarantee contributions equal to 11% of your monthly wages. These payments are made at least four times a year.
There are two primary stages in superannuation: the growth phase and the payment phase.
Growth Phase
During this stage, the superannuation interest accrues because the member receives contributions through employment. Members can also make voluntary contributions through salary sacrifice, called concessional contributions.
Super interests can also increase due to returns from investments in Australian securities. However, a super fund can’t guarantee that past performance is a reliable indicator of future performance.
Payment Phase
At this stage, the super interest starts being paid to the member. This may occur at regular intervals or as a lump sum. Certain conditions must be met for this stage to be triggered.
For example, reaching the preservation age can make you eligible for payments. For those born after 1 July 1964, that age is 60.
Superannuation in Divorce Splitting Process
Superannuation splitting laws govern how super interests may be divided in a financial agreement. Parties should note that splitting laws don’t convert super interests to cash assets. They are still subject to superannuation laws.
This means that while a super interest can be included in a financial agreement, it still cannot be accessed until the conditions of release have been met.
Splitting options
Financial agreement
You can organise a superannuation split privately or through the Court. A private agreement requires both parties to seek independent legal advice. It doesn’t need the parties to go to court.
Consent order
A court order can be made with the consent of both parties. In this case, neither party needs to attend court.
Court hearing
If there’s no agreement, the parties must attend a court hearing to settle the matter. The superannuation funds should be told of the orders you’re looking for. This allows the trustee to attend the hearing.
Before attempting to split superannuation, the interest must be valued.
Superannuation valuation
You’ll need to request information from the superannuation fund to value the superannuation to be split.
If you need help determining which fund to approach, you can apply to the Court to request your spouse provide the information held by the Australian Taxation Office. You must be a party to a current financial order.
You can apply for information by filing the following forms:
Form 6 Declaration
This form certifies that you are permitted to seek information from the trustee. People eligible to seek information are:
A member of the superannuation fund;
The member’s spouse;
Someone intending to enter an agreement with the member.
Superannuation information request form
The superannuation information request form should be included with the appropriate superannuation information form.
Super funds use this form to respond to requests. Information requests often attract a fee.
Conclusion
There isn’t only one factor affecting how superannuation in divorce interests are split. Splitting can be organised through a financial agreement, consent order or after a court hearing. Before splitting, the super account must be valued after the fund obtains the necessary information.
You can contact us for advice on your superannuation entitlements if you’re in a property settlement.
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