We do superannuation in family law better than most. It’s a part of family law that is often ignored, misunderstood or mismanaged. It’s a specialised area that needs specialist advice.
The Courts have the power to split superannuation. In practice, that means they take it out of one party’s fund and put it in the other party’s fund. How they do that is important to get right. The two options for determining the amount of ‘super’ to be split is a base amount (a specified sum) or a percentage split.
For a base amount, the operative time can be chosen. That means that the split is implemented as if it happened at the time stated. Where the operative time is in the past an extra amount may be added to or taken off the sum to take into account the growth or decrease in the fund. We make strategic decisions about questions like this to make sure that there are no unintended consequences.
Different superannuation funds behave differently. It’s important to understand not only the quantity of ‘super’ but also the type to get the split right. For some funds the amount written on the statement is not an accurate reflection of its value for family law purposes. Where superannuation is in payment phase (ie, a pension is being paid) then the approach the Court take may depend on the circumstances of the case. The same is true in a negotiation. In some cases the fairest approach is treat it as a lump sum value and in others, the fairest is to treat it as an income. In many cases there are real debates about that question and it is not clear cut.
For Self-Managed Superannuation Funds (SMSFs) there are other considerations just as tax and the practicalities of how to achieve a split.
We have lawyers who specialise in these complicated questions both in Court and in negotiations. We can also provide second opinions or advice about just the superannuation component.