Property settlements and superannuation

As a Family Lawyer, I am often asked "will my ex get my super?"

For a number of years now, Courts have recognised superannuation to be property and therefore included in the pool of assets available to be divided between a separating couple.

However, the Courts also recognise that superannuation is a different type of asset or, what the court calls, "another species of asset." Coghlan & Coghlan 2005 FLC 93-220

In other words Courts recognise that people cannot access their superannuation until they reach preservation age which can be anything from the age 55.

So how does the Court deal with Super?

Courts can Order that superannuation is "split", effectively rolling over the super into the other party's superannuation fund.

Given the availability of Superannuation Splitting Orders Courts often deal with superannuation assets separately from the non-superannuation assets when determining the percentage division giving rise to the property settlement Orders. For example, the Orders could provide for a 60/40 division of the non-superannuation assets and an equal division of the superannuation assets which would include a Superannuation Splitting Order.

Whether a Court decides to make a Superannuation Splitting Order or not, or how a Court treats superannuation depends on a number of factors, including the length of the relationship, each party's age and the nature of their superannuation interest.

So, superannuation will be part of what is available to be divided in any property settlement. How a court deals with super will depend on the particular circumstances of each individual situation.