Can my former spouse take my super?

You have worked hard to accumulate your superannuation and understandably you would like to protect your retirement and secure your future, just as you had planned.

See Also: Property Settlement & Superannuation

It may come as a surprise to you that superannuation is treated as property under the Family Law Act 1975 (Cth).

Now that you are aware superannuation forms part of your property settlement you can understand that superannuation can be flagged, split or left “as is”.

The best thing you can do to protect your future is to be informed.

When considering your options in your property settlement we suggest you take the following actions:

1. Get informed: Information is power. Contact our office and we can provide you with all the information you require to navigate your property settlement as a whole, including flagging tax and financial planning issues.
2. Value the super: Not all supers are the same. It is important that any super you or your former partner has is valued correctly or it could lead to disastrous consequences. Self-managed super funds, government funds and other types of funds are valued according to different formulas for family law purposes.
3. Is your spouse entitled to your super? We would need to meet with you to discuss if your spouse has any entitlements and, if so, what those entitlements would likely be.

Don’t be like Geoff

Geoff met Sabrina during a Contiki tour. They fell madly in love. They moved in together, jointly purchasing a home. Sabrina was employed by the NSW Government and had a defined benefit scheme superannuation. Geoff was employed in the private sector and had a self-managed super fund (“SMSF”).

The years passed and Geoff became unhappy in the relationship, and they subsequently separated.

Geoff decided not to seek legal advice.

Sabrina instructed a lawyer to prepare Consent Orders and sought to split Geoff’s superannuation and keep her own. Geoff obliged and the split occurred.

However, the Orders were poorly drafted and unfortunately Geoff needed to sell super assets which incurred Capital Gains Tax (“CGT”) for the SMSF to perform the super split.

Geoff was left to solely incur the CGT on the superannuation split, which depleted his remaining entitlements even further.

Don’t be like Geoff, don’t stick your head in the sand come and see us!