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What is Superannuation Splitting? Why is it Important?

When a marriage or de facto relationship breaks down superannuation splitting is particularly important as it is often a large asset of one or both of the parties to the relationship. Most superannuation interests can be split. However, generally any interest that has a withdrawal benefit of less than $5,000 is not splittable as it would not be cost effective to do so.

It is important to remember that Super Splitting does not immediately convert superannuation into a cash asset. It is still subject to superannuation laws, and you will generally only be able to access it when you reach preservation age or another condition of release comes about. Generally a splitting agreement or order will mean that the trustee of the superannuation fund that is being split is directed to divide and transfer a portion yours or your partner’s entitlement to the other person. The person who is receiving the split amount can then transfer or roll-out that amount to another account with that fund or to another fund.

If you want to postpone making a decision about how to split a superannuation interest or you think the other party might try to deal in their interest you can make a flagging agreement or seek a flagging order, which prevents the superannuation trustee from releasing or dealing with the superannuation entitlements until a decision is made and the flag is lifted.

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If you separate, can you divide your superannuation?

Superannuation is different from other types of property because it is an asset that is held on trust. The trustee of the superannuation fund controls the assets of the superannuation fund and therefore the process to transfer, divide or adjust superannuation is slightly different to the process adopted for assets such as bank accounts, cars or real estate.

If you are separating you can either:

Seek consent orders to split superannuation; or

If you cannot reach an agreement, seek a court order to split superannuation

If you choose a formal written agreement both of you will need to separately instruct a lawyer who must sign a certificate stating that they have given you independent legal advice about the agreement. This type of agreement is not registered in court so you should be careful to each retain a copy.

If you choose a formal written agreement both of you will need to separately instruct a lawyer who must sign a certificate stating that they have given you independent legal advice about the agreement. This type of agreement is not registered in court so you should be careful to each retain a copy.

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Your Legal Champions: Ready to Advise, Mediate, Negotiate or Litigate for You

When you need outcome driven legal services so that you can achieve your personal and business aims, Anumis Legal is your go-to, reliable commercial law and family specialist. We combine commercially astute legal strategies with compassionate client care, ensuring you feel supported. Anumis Legal will strategically pursue your interests in any forum, from mediation and negotiation to advocating for you in Court.

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Valuing Your Superannuation Interest

Although the superannuation splitting laws do not require you to value the superannuation interest before making a payment splitting agreement this would be a sensible thing to do. If you are seeking a payment splitting order, then the court is required to have evidence of the value of the superannuation interest.

 

You can apply to the trustee of a superannuation fund for information about a superannuation interest including the value, or information that will enable you to calculate its value, along with other information that might be of assistance when you are considering what might be done with the superannuation interest.

 

Documents which will help you obtain this information are available in a Superannuation Information Kit at your nearest family law registry, or from the Federal Circuit and Family Court of Australia website. Some superannuation funds have their own form for you to complete. The superannuation fund may charge a fee for providing the information, and this is paid when you send the forms. The information from the fund will generally be enough to establish the value of the superannuation interest. However, the valuation of some superannuation interests e.g. defined benefit interests can be complex, and an expert may need to be engaged to provide a valuation.

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How Can You Make The Super Split Happen?

Before you sign an agreement or seek court orders about superannuation, you must tell the superannuation fund trustee about the orders you are seeking.

The trustee must be given a copy of the agreement or draft orders you are seeking at least 28 days prior to the agreement being signed or the consent orders being filed with the court, to allow the trustee time to consider them and if necessary, object to the orders being sought. Sometimes a trustee may write back and request a change in the wording but otherwise consent to the order being made.

Once the superannuation agreement is signed or the court order is made, whether by consent or after a hearing, you must provide a copy of the agreement or a sealed copy of the order to the trustee, so that they can give effect the super split.

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Our Anumis Legal Family Law Team

We will explain your rights and help you to move forward. Call Nadine Love or Dr John Cronin on 07 5455 6347 or email admin@anumis.com.au for your complimentary chat and with our Noosa Marina Family Lawyers!

What Our Clients Say

Toni Collett
Toni Collett
3 months ago
Can not recommend more Highly for the Anumis Legal Services in Tewantin. Very professional people who are also down to earth. They take the time to explain (in English for the non law people) give honest advice and feedback and actioned all that needed to be done in amazing time. Thank you so much Nadine & John - you guys are amazing. I will also be verbally on recommending your firm to anyone who asks. Kindest Regards Toni C
Jason Mills
Jason Mills
3 months ago
Dr John and the whole team at Anumis legal are extremely professional but at the same time very approachable. This is the 2nd time we have used them for a commercial lease and the process has been straight forward and easy. I would not hesitate to recommend them. Bonus points for the cute dog too!
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tanya doyle
4 months ago
I used Anumis legal to buy a new business and l found both John and Nadine to be very professional, friendly, clear and upfront with everything l needed to do and know. My emails were always answered quickly. I would 100% recommend them.
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D Lynn
4 months ago
My business has used Anumis Legal for all our business needs. We have used them for all our personal legal matters and have recommended them to friends who also have had exceptional service from all the team at Anumis. I highly recommend them for advice matters, legal document creation and other legal matters. 5 plus stars!!!!
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Cheryl M
3 months ago
Anumis Legal was recommended by a friend & we’re very pleased to have gone with his recommendation. Our matter was handled efficiently & resolved quickly. Thank you John, Nadine & Mira!

Meet Our Legal Team

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Dr John Cronin

Dr John Cronin holds a Master’s Degree in Business Management, a PHD in socially responsible investment, and is pursuing a further PHD in superannuation law. In his earlier engineering career, he led numerous large-scale equipment design and infrastructure development projects. A former financial and investment advisor, Dr John has a wealth of experience across banking, finance, and investment.

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Nadine Love

Nadine Love specialises in Family Law from the perspective that legal processes can and must promote wellbeing. Therapeutic Jurisprudence informs her compassionate, practical, respectful provision of legal services. In her pre-law career, Nadine devoted decades to working with groups and individuals as a therapist, mentor, trainer, and author to assist her clients to find clarity, confidence, and voice. Nadine holds a Master of Arts in Dramatherapy. In 2020, Nadine was awarded the NSW Bar Association Prize for Civil Litigation and Evidence.

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