Is superannuation considered part of the property settlement if I separate from my spouse? Family Lawyer, Gisele Reid talks us through the issues.
We work all our lives to create a nest-egg that will hopefully sustain us comfortably in our retirement, and in this day and age most of us jealously consider our superannuation investments to be our own precious, private nest-egg. To some extent it’s true.
The superannuation reform package announced in the 2016-2017 budget intends to improve fairness, sustainability, flexibility and integrity of the superannuation system. It also reinforces a clear objective for superannuation to ‘provide income in retirement to substitute or supplement the Age Pension’. All Australians are encouraged to save for their own retirement and to become more self-sufficient.
Interestingly, the 2016-2017 budget included a new measure set to come into force from 1 July 2018, that will allow Australians aged 65 and older to be able to make non-concessional superannuation contributions of up to $300,000, effectively $600,000 for couples, from the sale proceeds of their home, owned for 10 years or more. Older Australians will now have the opportunity to top up their superannuation where downsizing their home provides them with funds to do so.
Superannuation funds are held in trust, and therefore they can’t generally be attacked by creditors, even in a bankruptcy situation. But that doesn’t mean they are unassailable. Many of my Family Law clients facing matrimonial property settlements wrongly assume their superannuation is locked away and can’t be carved up as part of the property settlement. I’m afraid it’s just not true. In the event of a relationship breakdown, all assets owned by both parties, including money held in super, must be identified and valued as part of the joint property pool, to be divided up between the parties, regardless of when it was acquired.
For the purposes of a property settlement, spouses have the option of taking their respective superannuation entitlements into account in the property settlement, by leaving them untouched and accounting to their spouse for their value from other assets, or alternatively by splitting the superannuation interest via a ‘payment split’. The most appropriate option will depend on the particular circumstances of each case. If it is convenient to make use of a payment split to effect property settlement then the superannuation of one spouse will be split so as to transfer part of that spouse’s superannuation into a superannuation fund in the name of the other spouse.
Before assessing whether or not you will be required to share your superannuation with your spouse for the purposes of a property settlement, it is essential to identify the nature and type of the superannuation interest you have, and its value. Once this is done, you are able to examine the effect of any proposed settlement and the likely consequences of any superannuation split, and decide whether or not it is in your best interest to make a payment split.
Either way, when you come to the property settlement table in Family Law proceedings, inevitably the whole nest egg will certainly be cracked.
w Gisele Reid, Family Lawyer and Migration Agent, Nyst Legal, www.nystlegal.com.au