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What will happen to my super during a divorce or separation?
Essentially, super is considered as property in the event of a relationship breakdown, so like any other asset it can be divided between partners by agreement or court order. This includes marriage or de facto relationships, both heterosexual or same sex. The rules do not apply to de facto couples in Western Australia.
Generally speaking, there are three options when deciding what happens to your superannuation benefits at the time of a divorce or separation:
Split the super. If you separate or become divorced, you and your ex-partner may split your or their super by agreement, or by court order – the same way as many other assets. Splitting super does not convert it into cash. It is still subject to superannuation preservation laws and must remain in superannuation until you satisfy a condition of release, such as by reaching your preservation age. Check when you can access your super here.
Defer your decision until another time, such as retirement. A couple can choose to wait for an event (such as retirement) to occur before dealing with the super account by making a flagging agreement, which prevents the super fund from making a payment out of the superannuation account until the flag is lifted. This approach is not often used, but might be appropriate if you or your ex-spouse are in a defined benefit account, where it is more difficult to determine the value of the superannuation. You may also ask for a payment flag to be placed on you and your ex-spouse’s accounts, particularly if one of you is approaching preservation age, to prevent any withdrawals being made before matters are settled.
Take super into account but leave untouched. A couple may choose to divide their other assets while considering the value of their super accounts but can decide to leave their superannuation benefits as they are. De facto couples in Western Australia may choose to take this approach, as their super cannot be split.
What’s the most common approach?
Splitting super is the most common approach for managing super during a divorce or separation, which typically follows these steps:
Calculate the total value of superannuation. You need to know how much is in your ex-spouse’s super account(s). You are entitled to ask their fund(s) for this information. You will need to fill out a form from the Family Court of Australia website.
Seek legal advice and reach an agreement, or if you can’t agree, then apply for a court order. Many things may be taken into account when determining how super will be split, for example, non-financial contributions to the relationship such as taking care of children. A court may also consider the financial position each of you will be in after the divorce or separation.
Send a copy of the agreement or order to the super fund(s).
The rules relating to dividing superannuation assets in the event of a relationship breakdown are complex, so even if your split is amicable, you should consider meeting with a family lawyer to ensure you’re complying with the relevant super laws and to protect your fair share of super.
https://www.industrysuper.com/un ... vorce-or-separation |
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