How Can I Find My Ex’s Superannuation
Superannuation is part of the property pool during separation and divorce, and it used to be quite difficult for people to get the details of their ex’s super entitlements. There is now a new avenue…
The Federal Government has now improved the visibility of superannuation assets in family law cases, making it harder for people to hide whatever super entitlements they have.
From April 1 this year, you can apply to the Federal Circuit and Family Court of Australia to request your ex’s super information, if you have started family law property proceedings.
The information is held and collected by the Australian Taxation Office (ATO) and once you have put in your request, it should take only seven days for a response from the ATO.
According to www.industrysuper.com, up to 40 per cent of Australians have more than one superannuation account, which means it is vital to get all the information you need.
Generally speaking, there are three options when deciding what happens to your superannuation benefits at the time of a divorce or separation:
- Split the super. If you separate or become divorced, you and your ex-partner may split your or their super by agreement, or by court order – the same way as many other assets. Splitting super does not convert it into cash. It must remain in superannuation until you satisfy a condition of release, such as by reaching the right age.
- Defer your decision until another time, such as retirement. A couple can choose to wait for an event to occur before dealing with the super account by making a flagging agreement, which prevents the super fund from making a payment out of the account until the flag is lifted. This approach is not often used but might be appropriate if you or your ex are in a defined benefit account, where it is more difficult to determine the value of the superannuation.
- Take super into account but leave it untouched. A couple may choose to divide their other assets while considering the value of their super accounts but can decide to leave their superannuation benefits as they are.
Splitting super is the most common approach for managing super during a divorce or separation, which typically follows these steps:
- Calculate the total value of superannuation. You need to know how much is in your ex-spouse’s super account(s).
- Seek legal advice and reach an agreement, or if you can’t agree, then apply for a court order. A number of things will be taken into account when determining how super will be split, including non-financial contributions such as taking care of children. A court may also consider the financial position each of you will be in after the divorce or separation.
- Send a copy of the agreement or order to the super fund(s).
What happens to a self-managed super fund?
If you run a self-managed super fund (SMSF) and you’re separating from your spouse, then your situation is more complicated, especially if your ex-spouse is also a Trustee of the SMSF. The breakdown of your relationship does not absolve you from your responsibilities as a Trustee. Trustees must continue to act in the best interests of all members at all times and must continue to act in accordance with super laws.
You cannot:
• Exclude another trustee from the decision-making process.
• Ignore requests to redeem assets and roll money over to another regulated complying super fund.
• Take any action not allowed by the Superannuation Industry (Supervision) Act 1993.
The rules relating to dividing superannuation assets in the event of a relationship breakdown are complex, so even if your split is amicable, you will need legal advice.
If you have questions about super, property settlements, divorce, or any other aspect of family law, contact Michael Lynch Family Lawyers on: (07) 3221 4300 or [email protected]
