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Superannuation splitting on separation: the basics

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What is superannuation splitting?

The trustee of one spouse’s superannuation fund can be required either by Court Order or by agreement to split some of that spouse’s superannuation interest to the other spouse on separation. Both spouses then have separate interests in the superannuation fund, which they can access on their retirement. In some cases, an interest can be ‘rolled out’ into another fund. Since 2009, superannuation splitting can occur for both married and de facto couples who separate.

Does this also apply to self-managed superannuation funds?

Yes. Particular taxation issues can arise in relation to superannuation splitting orders in SMFSs, and we recommend that you seek expert advice.

How much will each spouse get?

It depends on a number of factors, including the value of their existing superannuation interests, what superannuation they had at the commencement of the relationship and how long it is before they will be able to access superannuation. Often the superannuation built up by a couple during a long marriage will be divided equally between them, but in many cases a different outcome is appropriate.

Can I take less superannuation and more other assets?

Yes. We recommend you obtain financial advice before making decisions about the mix of assets you receive as part of a property settlement.

Can we tell the value of our superannuation from our annual statements?

Not necessarily:

• A statement provides a value on a particular date. If you separate in April 2014, and you have a statement for 30 June 2013, the superannuation is likely to be worth significantly more at the date of separation. You can apply to a superannuation fund for information about the value of your or your spouse’s superannuation at a particular date using a prescribed form.

• The statement value does not represent the ‘Family Law Value’ of an interest in a defined benefit fund (such as the PSS, CSS, DFRDB or MSBS). The FLV needs to be calculated by an expert and is often quite different from the statement value. You or your lawyer can arrange a Family Law Valuation of your or your spouse’s superannuation.

Does the operative time matter?

Yes. The operative time of the split (which will be provided for in the Orders or agreement) can make a significant difference to the superannuation amount each spouse receives. Expert advice should be sought on this issue.

Will I need a lawyer’s help to achieve a superannuation split?

We recommend that you obtain advice from a lawyer who specialises in family law as superannuation splitting orders or agreements can be quite complex.

Dr Juliet Behrens is a Senior Associate of the firm 18 Kendall Lane, New Acton Canberra City ACT 2601 T: (02) 6212 7600 E: [email protected]www.ddcslawyers.com.au
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