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QLD Divorce and Superannuation Entitlements

Discussion in 'Family Law Forum' started by madaline, 30 June 2015.

  1. madaline

    madaline Member

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    I am considering separating from my husband and divorce. Problem is we have a joint self managed superannuation fund (SMSF) and an investment property. Most of the money was my super being $130,000 and his $18,000 he can be quite difficult and angry and I know if I leave there will be a long drawn out settlement and he earns more than me and will try and bleed me dry to take the lot.

    So should I go ahead, or will it mean I'm on proverty street when I leave working? I am 53 years old.
     
  2. Tracy B

    Tracy B Well-Known Member

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    Hi Madaline,

    Is your question whether to leave/divorce your husband or whether to forgo your super in the joint account?

    If you separate, your super (joint and personal) forms part of the shared assets (together with your other joint and personal assets). You then divide this in a process known as property settlement. You can either do this amicably with your husband (by drawing a formal written agreement and have lawyers look through this agreement) or you can let the court decide. Either way, your superannuation (both yours and your husbands) will be considered together with your other assets and contributions.

    Hence, there are two parts to property settlement:

    1. How much does each party contribute to the shared assets? What is the value of the shared pool?
    2. How much should each party get from the shared assets? Therefore, how should the pool be split?

    The second question will consider:
    • Proportion each party contributed to the shared pool;
    • Earning capacities of each party (past, present and future);
    • Financial obligations and needs by each party;
    • Dependants and their financial needs and how their is shared by the parties;
    Ultimately, the court will decide on a split that is fair and equitable. If your husband is angry and uncooperative, then it may be best to get the court to help you.
     
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  3. stevej

    stevej Active Member

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    I'm not sure if this is the right way to post my question and apologies if it's not and for butting into Madalines conversation but I'm in the same boat except that I have seperated from my wife , less than 12 months so not divorced.

    My ex is not interested in discussing how to split our assets so I'm wondering what my next step is?
    Is/are there some form/s I can fill in to get the ball rolling , I would like to keep the lawyers out of it at this stage :) , I'm quite bright and have plenty of spare time on my hands .

    Thanks in advance

    Steve
     
  4. AllForHer

    AllForHer Well-Known Member

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    Your first step is to organise a family dispute resolution conference with your former spouse to discuss and try and reach agreement about a property settlement.

    Legal Aid and Relationships Australia both offer this service, but there is a wait time because they have to notify the other party and await their response before going ahead with the conference. If you want to speed things up, you could go through a family law firm that offers mediation, but it is more costly.

    To prepare yourself, write down some options for settling so that you have a starting point, and think about the minimum you would be willing to settle for. At a family dispute resolution conference, a third party mediator will help the parties keep on point about the matter and guide them towards agreement.

    If you can't reach agreement, you'll be issued with a s60i certificate that will enable you to file a property settlement application with the court. You only have 12 months after a divorce is finalised to file a property settlement application. However, this next step is still a while away for you yet. Contact Legal Aid first and talk to them about a family dispute resolution conference.

    Hope this helps.
     
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  5. stevej

    stevej Active Member

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    Thanks very much for your prompt reply.
     
  6. stevej

    stevej Active Member

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    Just a quick one , have just contacted Relationships Australia and they don't do property , I should have been more explicit and said that it is only property that is in dispute , everything else "seems " to be worked out amicably (one son , access etc).....so my next step should be?
     
  7. stevej

    stevej Active Member

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    Hello , anyone?
     
  8. Tracy B

    Tracy B Well-Known Member

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    Hi Stevej,

    I believe @AllForHer has already answered this for you.

    1. Try and reach a property settlement amongst yourselves. You need to show the court that you and your ex partner has tried to resolve the property settlement issue. This includes participating in dispute resolution (e.g. mediation). If you don't and apply directly the the court for a property order, the court may suspend proceedings and instruct you to participate in some form of dispute resolution first. If you reach settlement, this will need to be reviewed by a lawyer to certify that both parties received independent legal advice before agreeing to the settlement.

    2. If this fails, apply to court. As AllForHer said:

    You will need to apply to either the Family Court or Family Circuit Court. You will need to each make full and frank disclosures about your respective financial situations.

    As for your next step, it should be contacting Legal Aid or Relationships Australia for referrals to dispute resolution. Even if the only issue in dispute is property, you still need to take this step first.
     
  9. stevej

    stevej Active Member

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    Ok thanks guess I was hoping to know what form etc I would need to fill in to take to court to get things started.
    I'll ask at court .

    Thanks
     
  10. Tracy B

    Tracy B Well-Known Member

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    Hi Stevej,

    I understand your question, but it is not as simple as filing an application in court. There are compulsory pre-action procedures you and your ex partner need to do first.

    1. See the Family Court's guide on "pre-action procedure for financial cases".

    2. After you go through the pre-action procedures, and if you still don't reach an agreement, you can then apply to court by:

    "How do I file an application?
    See also:

    What forms do I need to complete if I am going to file at a registry?
    1. Initiating Application with supporting Affidavit (Federal Circuit Court of Australia) or Affidavit (Family Court of Australia). Please refer to the fact sheet Preparing an affidavit.
    2. Financial statement if financial orders sought
    3. Superannuation information kit (only required if seeking a splitting/ flagging order - can be ordered if further information is required. You must provide a valuation and evidence that procedural fairness has been provided to the relevant superannuation trustee."
    (taken from the Family Court page: "how do I apply for property and financial orders")
     
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