It’s common for separating couples to have different levels of superannuation. How you split your super in your separation sometimes comes as a surprise.
It’s important to understand that superannuation is considered property in a separation, and you both must include your super in your pool of assets. You should also understand your rights to your portion of the split.
We asked family lawyer Samantha Miller some common questions we get from separating couples about how family law legislation views superannuation in separation.
What happens if I’ve been a primary caregiver and missed out on years of earnings and super contributions?
In a property settlement, the law looks at the contributions you’ve both made to all of your assets, including your superannuation, property, other investments, and belongings. The law thinks about the direct financial contributions and indirect contributions to those assets.
For example, one person stayed home to look after children so their spouse could go out and make money and contribute towards superannuation. These contributions are considered equal, so the superannuation entitlements are considered equal.
What happens to my super if my ex is caring for our children more after we separate?
The law looks firstly at contributions during the relationship and then at each person’s future needs and earning potential. This includes the impact on someone’s future career if they need to care for their children.
It’s common for the person who has taken a greater share of the care of children during the relationship to have a lower income and to have contributed less to their own superannuation. Post-separation, caring for the children is more costly, and it also impacts the ability to earn and reestablish superannuation and financial position.
So, the law will often award a greater share of the asset pool to the parent with a lower income and a greater share of the children. Remember, the asset pool includes both of your super balances.
What happens if my partner received employer contributions while I was a sole trader or business owner and I didn’t make contributions to my super?
Just because one person didn’t contribute to their superannuation doesn’t mean they’re not equally entitled to the pool of assets.
If the money existed and was used within the marriage for the couple or family’s benefit, it would be counted just like any other asset. Each person would have the same entitlement to the asset as if they’ve contributed to it throughout their relationship.
What happens if I’ve contributed ten or twenty years of superannuation to my fund before entering the relationship?
The initial contribution, or what each party brought into the relationship, is considered in a split. That may give one person a greater pull on the assets.
If the relationship is around five years or shorter, initial contributions are given more weight. If a relationship breaks down very early on, then a settlement will often try to put the people back into the same position that they came into the relationship.
However, if a marriage is 20 or 30 years long, the initial contributions are generally not given much consideration.
What happens to any super built after the official date of my separation but before my settlement is finalised?
The couple’s entire pool of assets is included in the split when legally binding documents are lodged with the court to finalise your financial and property matters. Legally, people must disclose their current position on that day.
Someone can make arguments about why the Court shouldn’t include it. For example, it arose post-separation. But if one party has less superannuation, it’s probably because they had a greater share of childcare, and there was a disparity in their income.
If my super was released early when we were together, how are my entitlements affected after we split?
If a couple released superannuation during the relationship, it will be assumed that it was used for the good of the family unit, and it just disappeared. The couple may have used it to pay off the mortgage or just spent it, and it’s no longer in the asset pool. If it was spent post-separation for entirely personal needs, it might be notionally added back into the asset pool and notionally divided.
The legislation is designed to provide an equitable split of assets based on your contributions to the relationship. Our expert Network Members are qualified to help you get to a fair outcome so you can get on with life with a fresh start and hopefully some financial security around your retirement.
If you want to know more about splitting assets in separation and get some advice about your circumstances, complete our 3-minute Q&A. The Q&A asks you questions to help us find out about your situation. We can send you resources to read and listen to relevant to your needs. And when you’re ready, we can put you in touch with the right professionals.
To hear the full discussion with Samantha, listen to our podcast Separating with super.
The Separation Guide aims to make separation and divorce simpler, more manageable and less stressful. To find out more about how one of our Network Members could support your separation, take our free 3-minute Q&A.
The information in our resources is general only. Consider getting in touch with a professional adviser if you need support with your legal, financial or wellbeing needs.