Super is one of the most valuable assets a couple has, but is often a forgotten asset when it comes to property settlements.
Under family law, when a marriage or de facto relationship breaks down, super can be split under a superannuation agreement reached by the two people involved, or if an agreement can’t be made, you can have the court determine the apportionment.
A lawyer can help you understand your rights and responsibilities, and explain how the law applies to your case, as well as help you reach an agreement with your former partner without going to court.
You may also choose to use a mediator to help you negotiate with your partner.
A superannuation agreement is an agreement about how, in the event of a marriage breakdown, superannuation interests are to be split. A superannuation agreement is like a financial agreement, but given that superannuation interests are held in trust, there are special rules about what a superannuation agreement has to include.
Provided that a superannuation agreement complies with the legal requirements detailed in the superannuation splitting laws, the agreement is binding. If a superannuation agreement is binding, then:
- The trustee of a superannuation fund is required by law to implement its terms; and
- The court is not able to make an order about the superannuation interest that is dealt with in the superannuation agreement.
If the separating parties are unable to agree, then:
- The court has the power to make an order, as part of a property settlement, about how any superannuation interests are to be split; and
- The court order is binding on the trustee of a superannuation fund, who must comply with it, provided that the legal requirements have been met.
When to make a superannuation agreement?
You are able to enter into a superannuation agreement:
- Before you marry
- During marriage or
- After separation.
For more information on this topic, contact our experienced family lawyer, Mark Orchard:
Phone: 07 4639 0358