How Is Superannuation Treated in Family Law?

Superannuation is a significant aspect of property settlements in family law in Australia, particularly in New South Wales. It is treated as a form of property and can be divided between parties upon the dissolution of a marriage or de facto relationship. Here’s an overview of how superannuation is treated in family law:

Superannuation as Property

Under the Family Law Act 1975 (Cth), superannuation is considered property and can be split between parties in a property settlement. This means that superannuation entitlements are subject to division just like other assets such as real estate or savings.

Superannuation Splitting

1. Superannuation Agreements: Parties can agree on how to split superannuation through a superannuation agreement, which is a type of financial agreement. This agreement must comply with specific legal requirements, including obtaining independent legal advice.
2. Court Orders: If parties cannot agree, the Court can make orders to split superannuation. The Court considers factors such as the contributions of each party, the future needs of each party, and the overall fairness of the proposed division.
3. Procedural Fairness: When a superannuation split is proposed, procedural fairness must be afforded to the trustee of the superannuation fund. This involves notifying the trustee and allowing them to make submissions regarding the proposed split.

Factors Considered in Superannuation Splitting

• Contributions: Both financial and non-financial contributions to the marriage or relationship are considered.
• Future Needs: The Court assesses the future needs of each party, including age, health, income, and earning capacity.
• Just and Equitable: The division must be just and equitable, ensuring fairness to both parties.

Implementation

Once a superannuation split is agreed upon or ordered by the Court, the parties must take steps to implement the division. This may involve transferring superannuation entitlements from one party’s fund to the other’s. Superannuation cannot be converted into cash.

Superannuation is a critical component of property settlements in family law. It requires careful consideration and legal compliance to ensure a fair and equitable division. Legal advice is often necessary to navigate the complexities of superannuation splitting and to ensure that all procedural requirements are met.

To speak with one of our experienced Family Law Solicitors about your matter and splitting your superannuation, contact our Sutherland Shire Team on 8525 2700, click here to request an appointment, or click on the Book Now button below. Our experienced team of Family Law Solicitors include Riccarda Stock, Nicole Quirk, Shweta Kumar, and Nikita Ward.

Article by Nikita Ward
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