“Is my ex wife entitled to my superannuation?”
“What are the divorce rules when it comes to superannuation?”
“Is superannuation treated differently from other assets in a divorce?”
These are some of the common questions asked by clients when it comes to superannuation and separation.
The short answer is that superannuation entitlements are treated as an asset and resource of the parties and will be included in any negotiations or settlement discussions around resolving financial matters. The difference with superannuation entitlements, as opposed to money in the bank or other liquid assets, is that neither party will be able to access superannuation until they meet a condition of release such as retirement.
Superannuation is able to be “split” in any family law settlement once Orders are made by the Family Court either by agreement or with a Judge making a decision. This means that some of one party’s superannuation is able to be transferred to another party’s superannuation fund – they cannot access it as “cash” but it will stay in their superannuation fund with their own superannuation entitlements.
In order to achieve this you need to give the superannuation fund “procedural fairness” which means the Trustee of the Fund receives a copy of the proposed Orders after the orders are drawn up by a solicitor as they can be quite specific.
How much superannuation gets transferred, if any, depends on a number of factors such as how long the relationship lasted, did either party have any superannuation at the start, have superannuation contributions been made following separation and what other assets there are. In very long relationships superannuation is often “equalised”, that is, both parties receive 50% of the total superannuation entitlements but this is not in every case and you need to get expert legal advice about your specific circumstances.