Family Law - Divorce and Superannuation Entitlements?

[Amy]

I've been separated for 7 years from my husband. We have to kids now 12 & 18. I've tried to apply for divorce since 2 years after separation but he said he wasn't ready. I now am ready with him willing now to file solely for divorce. We sold our house 5 years ago. I have 100% custody of children. I've been in financial hardship since separating.

My question is mainly about my entitlements to his superannuation. How much does he legally under family law have to pay me? We divided the sale price of our home 60%, me 40% him if that gets considered. So therefore, how much super legally does he need to give me as of date of separation 25 May 2008 and how much thereafter till now is there interest he owes me? Kind regards.

 

[Worldly1]

Hi Amy

I was looking up this issue myself not too long ago.

The Attorney-General’s Department site and ‘Superannuation Splitting Laws - FAQ’ publication provide some really good information in simple language. It think you’ll find it useful, as well as the Family Law Courts website and its Superannuation Information Kit.

I don’t think you’re entitled to any back ‘interest’, you need to come to an agreement now about what’s currently in the superannuation and how its to be split. Perhaps 60:40% would be a fair split given that you split your property in that share.

My understanding is that the steps to split the super are:
1. Request information from your spouse’s super fund.
2. Value the super benefit.
3. Reach a formal agreement, or apply for a court order if you can’t agree.
4. Send a copy of the agreement or order to the super fund.
5. Split the super benefit.

The sites and documents I linked you to above go through these steps in more detail for you. So for example, starting at Step 1, you would need to provide the following forms to the trustee of the super fund:

• Form 6 Declaration. This satisfies the trustee of the fund that you are entitled to get the information for the purpose of valuing your spouse’s super, and
• Superannuation Information Request Form (accompanied by the appropriate Superannuation Information Form).

The superannuation fund may charge a fee for providing the information. The Superannuation Information Kit provides the information and the forms you need.

Your part of the super would typically be held until you reach the preservation age (so, 60), but if you’re experiencing severe financial hardship, you may have a case for getting it released early. The Department of Human Services has a useful page on early release criteria.

Superannuation is a complex area of law and even where things are amicable, the super laws require each party to get independent legal advice before signing a super splitting agreement in order for the agreement to bind the super fund. So its worthwhile for you to get some legal advice from Legal Aid or a community legal centre. Which State are you in? (There are different Legal Aid offices for the different States - e.g, Legal Aid NSW or Legal Aid Victoria.)