Is Superannuation Property?

Yes. Although the Family Courts treat superannuation as a different class of property than other property such as houses, cars,motorbikes, savings and home contents (the Court refers to this type of property as cash assets). Because superannuation is something that you don’t have access to (unless of retirement age) people often tend to forget about superannuation when considering their property entitlements. In some cases, the superannuation entitlements of parties are significant and sometimes, the only significant property of the parties.

It is not uncommon for a party (usually but not always the mother) to take a significant amount of time from the work force to raise children and to contribute as the primary homemaker and parent of the relationship. It is not difficult to imagine a scenario where the mother has contributed as a primary homemaker and carer for the duration of a long relationship, but because the father was the sole income earner, the parties have not acquired cash assets of significant value. Meanwhile, the husband/father due to his ongoing full-time work for the duration of a long relationship, could have amassed significant superannuation entitlements whilst the wife/mother has acquired little to none.
Another common scenario is where one party is self-employed and applies all their available income to the living expenses and/or cash assets of the parties, as opposed to making contributions to a superannuation fund.
In cases such as this, if the other party maintains full time employment for most of the relationship, they would likely acquire significantly greater superannuation during the relationship than that of their spouse.

Accordingly, it is important that superannuation is given proper consideration when discussing a property settlement, even if there are no other significant cash assets to consider.

In a long relationship where the contributions of the parties (both financial and non-financial) have been more or less equal, one party should not end up with significantly more superannuation than the other party. To correct any imbalance to the parties’ superannuation entitlements, a superannuation split can be either agreed between the parties and formalised in an Application for Consent Orders or Binding Financial Agreement, or, Ordered by the Court.

A superannuation split will take a portion of the superannuation from the party with more and roll it over into a superannuation fund of the party with less. However, whilst neither party would be eligible to access the superannuation entitlements until retirement age, a superannuation split will ensure that parties are able to enjoy similar entitlements when eligible.

If you need advice regarding your superannuation in relation to your Family Court proceedings – get Conditsis involved, contact us now.  

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