Is my ex-partner entitled to my superannuation?

It wasn’t that long ago that superannuation as we know it today was a fairly insignificant topic. This changed in the early 1990s when the government announced that it will superannuate all adult Australians, so no Australian would need to apply for the aged pension. Now, the Family Law Act defines superannuation as ‘property’ which is capable of being divided between the parties of a marriage or a de facto relationship.  However, superannuation is treated differently to other assets. There are specific laws which regulate superannuation, including the process of splitting a superannuation interest.

In some circumstances, a party’s superannuation interest may make up a large portion of the parties’ property pool. It is therefore important to understand your partner’s superannuation interests and your entitlements to them. This is particularly important as generally women will often face retirement with much less superannuation than men.

Types of superannuation interests

The two main types of superannuation funds are:

• accumulation funds; and
• defined benefits schemes.

An accumulation fund is one where the benefit that the member will receive on retirement is an accumulation of payments made to the fund by the member and employer contributions. Whereas a defined benefits scheme provides for benefits to be paid to a member on retirement and calculated according to a formula with future annual adjustments.

In some cases, the superannuation fund can be a hybrid, which is a combination of the defined benefits scheme and accumulation fund.

Understanding the value of your ex-partner’s superannuation entitlements

One of the first steps in determining your interest in your ex-partner’s superannuation (or vice versa), will be to work out the value of each superannuation interest. This is fairly straight forward for accumulation funds, whereby a statement can be obtained for the current balance. Conversely, defined benefit schemes will often need to be valued by an accountant. Similarly, this may be the case for self-managed super funds which could have investments in shares, real estate and other assets.

Options for splitting superannuation

Separating couples may:

• enter into an agreement to split superannuation, pending certain requirements being met, including having obtained legal advice;
• apply to the court to make orders by consent to split superannuation; or
• seek court orders to split superannuation if no agreement can be reached.

It is important to obtain legal advice in relation to each of these options.

Finding your ex-partner’s superannuation

If court proceedings have commenced (seeking financial orders) and you are usure which superannuation funds your ex-partner has, one options is to make an application directly to the Court to request your ex-partner’s superannuation information held by the Commissioner of Taxation.

Unsplittable superannuation

Lastly, not all superannuation is splitable. For example, a superannuation interest of less than $5,000 will usually be unsplittable.

The rules and laws around splitting super can be complicated and Solari and Stock Lawyers can assist you in dealing with difficult property issues. To speak with one of our experienced Family Law Solicitors contact us on 8525 2700 or click here to request an appointment with one of our Team.

Article written by Kirstin Attard
Photo by Melissa Walker Horn on Unsplash