A separation is a difficult time for any couple, especially when there are kids involved. So understanding how to financially separate from a spouse can alleviate some of the overwhelm and pain and help you create a confident plan moving forward. If you are currently trying to close a big chapter of your book of life and you’re wondering “How to financially separate from a spouse?”, “What am I entitled to in a separation?” or “Can my ex wife take my superannuation?” You’ve come to the right place. In this article, we will discuss everything you need to know about divorce and superannuation in Australia.
What is a superannuation?
Superannuation, also known as super, is a pension fund you have been paying into for your entire working life. Most superannuation payments are made through your employer on your behalf, however self-employed Australians need to contribute super payments from their own business earnings. You can only access money from your super when you retire or turn 65.
Am I entitled to my partner’s superannuation?
Separation brings up many questions such as “What is my wife entitled to in a divorce in Australia?” Or, “How do I claim my ex husband’s superannuation?” One of the most common questions we get here at Savannah Legal is about splitting superannuation. Not many couples know their rights when it comes to divorce and superannuation.
Can you get access to your partner’s superannuation and how?
In the event of a separation, superannuation is considered property in all states except Western Australia. This means it can be divided up just like any other asset (5) a couple owns, either through agreement or court order. However, in Western Australia, superannuation is considered a financial resource and taken into account when dividing assets.
How do I claim my spouse’s super contribution?
Married couples:
You must apply to Family Court for superannuation orders within 12 months from the date your Divorce Order took effect.
If you have not filed for divorce, you can make a claim for superannuation at any time after separation.
De facto relationships:
A couple enter a de facto relationship once they have been living together for a minimum of two years. If you are separating from a de facto relationship you must apply to the court for superannuation orders within 2 years of the date of separation from your partner if you live outside Western Australia. In Western Australia, the legislation to allow de facto partners to make a claim against their partner’s superannuation following separation is still being formalised. Therefore, speak to a lawyer for specific advice to your circumstances.
It’s important to remember that splitting your superannuation does not mean you can convert it into cash. Withdrawing super to pay debt is not possible as it will still remain locked under superannuation preservation laws until you retire or turn 65.
Splitting superannuation in a divorce
If you and your partner can agree amicably on how you should split your superannuation then a formal written agreement will be prepared by a lawyer that details how your superannuation will be split between both parties. The lawyer also needs to certify that you and your partner have received independent legal advice about splitting your superannuation. Alternatively, the agreement can be filed with the court as a consent order subject to your individual circumstances. Please speak to a lawyer for specific advice regarding your circumstances.
Do you need a court order to split superannuation?
You do not need a court order to split superannuation if you and your partner can agree on the terms and apply for a consent order as detailed above. This also means you won’t be required to attend court.
If you and your partner can’t agree on how you want to split your superannuation, you can seek a court order from the family court. The Family Court will make a fair decision on your behalf and ensure that the splitting of your superannuation is equitable for both you and your partner. Seeking a court order to split superannuation does mean you will be required to attend court if required and there is no agreement.
What is the Family Court process for splitting superannuation?
To fairly determine how much superannuation each party is entitled to, the Family Court process involves the following steps:
- The superannuation in question is valued.
- You and your partner’s contributions to the superannuation fund is assessed, including financial and non-financial.
- The Family Court considers you and your partner’s current situation, such as your age, health, income earning capacity, whether you share joint or sole custody of your children, as well as any existing financial commitments and responsibilities.
- Before any final decision is made the Family Court makes an evaluation to ensure it is fair and equitable for both parties.
Who can help you with the process?
To begin with, here are a few helpful resources to get the process of splitting assets started.
Initiating application for family court:
https://www.fcfcoa.gov.au/fl/forms/initiating-app-kit and https://www.familycourt.wa.gov.au/A/application_property_and_financial.aspx
Divorce asset split calculator:
There are a number of online resources to help you and your partner split your assets such as Westpac’s divorce settlement calculator australia.
Find my superannuation:
To locate your one or more superannuation funds login on to my.gov.au and follow the easy to follow instructions.
When you are ready to receive legal advice about splitting your superannuation and preparing a formal written agreement Savannah Legal is here to help.
Savannah Legal offers a free 1 hour consultation and we take the time to understand your situation, concerns and needs, before providing you with a legal plan outlining your options. Our goal is to give you affordable legal advice while lifting a burden off your shoulders. Book your free consultation today.