A separation can be a difficult time with lots of factors to consider. One of these factors is the splitting of superannuation which is treated differently to other property settlements that may occur in a separation. Superannuation does not convert into a cash asset when split and the funds are still subject to superannuation laws.
Here’s our guide to help you decide on your next step.
Options for splitting superannuation
There are three ways in which superannuation can be split. They are:
- Seek Consent Orders to split superannuation.
- A formal written agreement which requires that you and you formal spouse to instruct a lawyer to sign a certificate stating that independent legal counsel has been sought in regards to the splitting.
- If an agreement cannot be reached a court order will be needed.
Obtain valuation information
The first thing that needs to happen is the value of the superannuation needs to be determined. This can be done by completing the following forms which are known as the Superannuation Information Kit:
- Form 6 Declaration.
- Superannuation Information Request Form.
- Superannuation Information Form.
These then need to be submitted to the trustee of your and/or your spouse’s superannuation fund. Some superannuation funds may charge a fee for this service which is usually payable on submission of the forms. The methods used to determine the value of your superannuation are set out by the superannuation splitting legislation. There are some exceptions however, for example in the case of self-managed funds, an accountant is sometimes needed to help determine the value and in some cases the Attorney-General can approve different valuation methods.
Decide on a splitting method
Once value has been determined you must then decide the best way in which to split this asset: a written formal agreement or a court order. Both of which will need legal advice to ensure that both parties receive their share. If you and your former partner reach an agreement then an Application of Consent Orders can be filed in the Family Court accompanied by a consent order recording the decision without either of you having to attend. If however, a decision needs to be made in court,you both will need to attend until a decision is made.
How can I begin this process?
These are the steps to begin this process:
- Complete the aforementioned Superannuation Information Kit
- File an Initiating Application, Financial Statement and Affidavit
- The other party will need to file a Response to Initiating Application, Financial Statement and Affidavit
The information you receive from the superannuation trustee will help you to complete the court forms.
How We Can Help
If you are in the process of a separation, our experienced team at Lees & Givney can provide you with the information and support that will be required throughout. Give us a call today on 02 98161122 so we can discuss how we can best help you.