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What happens to my superannuation when I separate?

It’s common for separating couples to have different levels of superannuation. How you split your super in a divorce settlement sometimes comes as a surprise.

It’s important to understand that superannuation is considered property in a separation, and you both have to include your super in your pool of assets. You should also understand your rights to your portion of the split.

We spoke to our Network Member, Samantha Miller from Clarity Lawyers. We asked her some common questions from separating couples about how family law legislation approaches splitting superannuation in separation.

Question:
What happens in a split if I’ve been a primary caregiver and I’ve forgone years of earning and super contributions?

In a property settlement following a couple separating, the law looks at contributions to all assets, including property, other investments, belongings and superannuation. The law considers direct financial contributions and indirect contributions to those assets.

For example, one person staying at home to look after children allows their spouse to go out and make money and contribute towards superannuation. These contributions are considered equal, so the superannuation entitlements are considered equal.

The law also considers each person’s future earning potential when deciding on a fair split of the superannuation, taking into account any impact on a person’s career to care for their children.

Question:
What happens to my super if my ex-partner is caring for our children more after we separate?

The law looks firstly at contributions and also each party’s future needs.

It’s common for the person who has taken a greater share of the care of children to have a lower income and to have contributed less superannuation. But caring for the children is more costly, and it also impacts the ability to earn and reestablish superannuation and financial position post-separation. So the parent who has a lower income and a greater share of the children is likely to receive a greater share of the asset pool.

Question:
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 still existed and was used within the marriage for the couple or family’s benefit, it’s 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.

Question:
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 at which they came into the relationship. However, if a marriage is 20 or 30 years long, the initial contributions generally aren’t given much consideration.

Question:
What happens to any super built after the official date of my separation but before my divorce is finalised?

The couple’s entire pool of assets is included in the split on the date the Court is asked to finalise the divorce. Legally people must disclose everything 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.

Question:
During the pandemic, we were able to draw down on our super and release some of the funds. If my super was released 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 like Samantha are qualified to help you get to a fair outcome so both of 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.

Samantha Miller is a Family Lawyer and authorised Network Member of The Separation Guide. 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.

Disclaimer
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.