WA Divorce - Husband has Taken the Superannuation

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2 September 2014
I am currently trying to finalize my divorce paperwork and form 11 with my children’s father - who I was married to for 12 years. I was quite financially well-off (I owned a small portfolio of properties) when we met, although my superannuation savings were rather modest. My children’s father had a good super (he was from the UK) and his engineering job was well paid and secure. I guess you could say we both put what we had into the marriage. As we had children and I was a stay at home mother for a number of years my super did not gain traction much while his super was accumulating all the time. Even after I went back to work no further money was put into my super.

Unfortunately my ex was terrible with investments and my property portfolio soon became security for his "dabbling" in quick rich property schemes - needless to say the money didn’t last long and by the time we separated and sold our last property (our family home) 2 1/2 years ago, we had two beautiful children and less than 250K to fight over - far less $$ than what I put into the marriage in the first place.

I have had custody of our teenage children (custody of children), however he does have full access to them, of which he "manages" to find the time every second weekend or so to have the children stay at his home (by "his home" I mean the various houses that he house sits since our separation, as he doesn’t want to "waste" his money on paying rent or a mortgage).

On a positive note, he does now pay the basic regular child support.

As noted above, getting my ex to finalize things has been a major ordeal and this has been very draining. Late last year, after struggling to pay my own rent and drowning under other bills (because we put the $250k into a trust account until we could agree on the split) and not having money to pay for much in the way of legal advice, I reluctantly agreed to take the money out of the trust account and split the money with my ex (a little in my favour). At this time we discussed the split of the super also and he agreed with this in theory but he said that it would take a few months to finalize. That was 9 months ago and he has been ducking and diving and ignoring my requests to get everything finalized ever since.

About a month ago I finally had enough and insisted that he finish signing the divorce papers and that he complete the form 11 or I would take him to court (not that I can afford it). Last week he told me on the phone that he wasn’t sure how to fill out the paperwork because he put the super into some sort of Self-Managed Property Super Fund and that it was now inaccessible.

Does anyone know how this type of super fund works and also if I can access it - I have been told that a share of the Super is mine - which is probably why my ex put it in self managed in the 1st place, but without heavy legal fees how does someone sort these things out?


Hi happy-with-a-new-life,

Although, Australian laws allow superannuation splitting, it is not converted to or treated as a cash asset. It is still subject to superannuation laws and limitations as to when it can be accessed.

What you will need to do is obtain a court order - by consent or otherwise, or enter into a formal legal agreement regarding the splitting of your super. You will need to have the self managed fund valued by an accountant.

The Family Law Courts website provides some helpful information that might point you in the right direction.