Dividing Superannuation
You should consider your super and your former partner’s super when negotiating your property settlement.
In a lot of relationships (especially if one person raised your children, and the other worked), there can be a big superannuation imbalance (e.g one person has a lot more super than the other).
Super should be considered in your negotiations. This is how super can be taken into account.
Super is an asset that can be transferred from one person to the other. This transfer of super is called ‘super splitting’.
You don't need to split super.
Alternatively, instead of receiving super, a person can take a greater portion of the other non-super assets.
Let’s discuss these options in more detail…
Option 1: Super Splitting
Super splitting is where person 1’s superannuation fund transfers a portion of person 1’s super to person 2’s superannuation fund.
Super splitting is available to all couples Australia-wide, whether you're in a de facto relationship or you're married. The laws changed recently to allow de facto couples in WA to split super.
Remember, super cannot be accessed until retirement age.
This does not change even if a super split has occurred.
If either you or your former partner need more immediate financial assistance, a super split is not going to be a viable option.
When deciding on the amount of super to be transferred, use the most up to date super balances. Any withdrawals by either you or your former partner should be disclosed.
If a super split is agreed, consent orders or a binding financial agreement provide a way of making a super split happen.
The super transfer is done through the super funds and not by either you or your former partner directly.
There are extra steps that need to be taken to properly record a super split (such as giving the super fund notice before lodging the consent orders). MKI Legal can help you with these complicated steps.
Option 2: Taking A Greater Share Of Other Assets
If one person is entitled to a portion of the other person’s super, they may prefer to take more ‘liquid assets’ instead. In other words, they may prefer to take more cash or real estate (which can be spent now) instead of super which can only be accessed at retirement.
This option also helps if either of you need more immediate financial assistance now and cannot wait for retirement age.
Lost super search
In your negotiations, you should be upfront with all the super you both have. A lost super search can determine whether there are any other superannuation funds that you might have forgotten about.
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