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. Superannuation funds are held in trust, and therefore they can’t generally be attacked by creditors, even 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.
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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.