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WA Transferring Spouse's Superannuation to Me After Separation?

Discussion in 'Superannuation Law Forum' started by cherry6, 21 May 2016.

  1. cherry6

    cherry6 Member

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    Hi,

    I know this is a bit complex but am hoping for some help as the super company involved aren't very helpful.

    I am an Australian citizen living in the UK but I will be returning to Australia in November. My husband is also in the UK, is a UK citizen and we went through a separation. He is not interested in the superannuation he had built up while working in Australia. He has agreed to let me have it and he will keep the UK pension.

    Neither of us has any other assets/property/cash. If I don't take the superannuation, it will go to waste as he doesn't care about it. What do we need to do to get the super transferred to me? Do I need to wait till I get back to Australia and then file something there? Or are we best getting some agreement signed by a solicitor in the UK?

    My husband has emailed the super company to ask but all they responded was telling him he could have early withdrawal if he was a temp resident but he was a permanent resident so this isn't possible.

    Any help is appreciated, thank you.
     
  2. Smiley

    Smiley Well-Known Member

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    Hi, Cherry6.

    Easy.

    I am guessing your former husband is not of retirement age given your comment he was advised to take his funds as a temporary resident?

    If your husband is not able to access the funds and then transfer it to you, you will both need to provide the Trustee of the superannuation fund family law splitting paperwork in order to have the funds transferred from your husband's name to your name.

    The Family Law Act 1975 allows a husband and wife who are divorced to transfer their superannuation accounts to one and other.

    To do so, there are two options (I am just doing this from memory):

    1. Family Law Agreement. Cheaper, quicker and does not require Courts, but you still need a solicitor (generally!). You and your former husband will both need to see a solicitor to draw up an Agreement. The solicitor will be able to help on the finer wording, but it essentially is an Agreement to the superannuation Fund stating that you and your former husband have reached an Agreement to transfer a portion or all of his superannuation to you (or vice versa).

    The superannuation Fund will then transfer his account into a Non-Member Spouse account under your name. You should be aware you will not be able to access any funds until you meet a condition of release (retirement etc).

    2. Court Orders. Longer, expensive and requires a solicitor. Essentially an Order is Sealed that directs the superannuation fund to transfer a portion or all of your husband's superannuation to you.

    No matter which option you take, ensure your solicitor provides to the superannuation fund "procedural fairness" before providing a final Agreement or Sealed Orders. Procedural Fairness in this instance is simply a draft copy of the Agreement or Order which allows the Trustee to review the draft and confirm if they can comply or not. EG No good providing a final Agreement or Sealed Orders if the Trustee can not do what you are seeking.

    Given you are in the UK, unless you know a solicitor that specialises in Australian Family Law specifically in superannuation splitting (my emphasis), I would suggest contacting an Australian solicitor who specialises in superannuation splitting. If you do so, you can just converse via email or telephone these days.

    Good luck
     
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  3. Smiley

    Smiley Well-Known Member

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    cherry6 likes this.
  4. cherry6

    cherry6 Member

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    Thank you so much! You have been a great help. I will contact an Australian solicitor. If necessary I can see in person when I arrive in Aus in November. My ex-husband will have to speak to him via phone or email, though. At least I know which path to take now, will go for the cheaper option of Family Law Agreement. I know I cant access it for quite a few years (as am only 46) but at least I know I will have something towards my retirement.

    Thanks again
     

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