What Happens to My Superannuation When I Separate?

Superannuation and separation can be very complex in family law. The question ‘what happens to my superannuation when I separate?’ arises when a couple is seeking a divorce or are already divorced.

Superannuation is a tax structure in Australia that is aimed at motivating people to save for their own retirement. It is also treated as part of the marital assets that are shared during the property settlement. Given it generally forms a major portion of your total assets, and for many separated couples it is a significant concern. Therefore, understanding how the process works is essential. The relevant factors that are considered when trying to divide superannuation interests include, but not restricted to the:

  • Superannuation held by each spouse when the marriage started
  • Number of assets each spouse brought to the marriage
  • Current property and interest on the superannuation
  • Duration of the marriage
  • Contribution of each spouse during their marriage, both direct and indirect etc
  • Dividing superannuation upon relationship breakdown

There are two basic division approaches a separated couple can take includes:

  • Through court orders
  • This comes in place where there is no agreement between the parties, and the court makes an order as part of a judgment resolving a dispute. To understand other specific factors that the Family Court will consider, it is best to consult a lawyer.
  • Superannuation agreements or Consent Orders
  • This agreement allows separating couples to reach an agreement on a property division without the delay, cost and the emotional toll of going to Court. It can be made before, during or after a relationship. It also sets out how the property and financial assets of a separated couple will be divided.
  • Usually, it is economical and less stressful if you and your ex/spouse can agree on how the superannuation interests should be divided without the need to go through the Family Courts.

Separation can be financially and emotionally devastating. We recommend you instruct and expert lawyer to receive legal advice about this complex topic. Our family lawyers at Alex Mandry Legal Group can advise you further on superannuation and separation and what your best options are. For any queries, do not hesitate to contact our office on 1800 329 090.

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