In 1983, the Hawke government introduced the compulsory
superannuation scheme whereby employers have since been obligated
to pay on behalf of employees a percentage of their total income
into a nominated superannuation fund of the employee. The minimum
amount of superannuation required to be paid by employers is
intended to increase from 9% to 13%. Not surprisingly, therefore,
most Australians have superannuation entitlements. For Family Law
purposes, superannuation is certainly relevant - however in WA
superannuation will be treated differently in a property settlement
depending on whether you were married or in a de-facto
In Western Australia, pursuant to the Family Law Act 1975
("Cth") married couples can "split" their
superannuation as part of a property settlement. Superannuation
therefore forms part of the asset pool. A superannuation split
means that a portion of a spouse's superannuation gets
transferred into the other spouse's nominated fund. However, a
superannuation spit does not convert superannuation into a cash
asset and superannuation laws still apply in relation when you can
access these funds (usually upon retirement).
The benefit of superannuation splitting is not, however,
available to de-facto couples in Western Australia. Rather, de
facto couples' superannuation is considered a financial
resource as opposed to an asset. Financial resources are taken
into account when considering the future needs of each party.
The question of whether a party is entitled to the other's
superannuation will depend on a range of factors including:
What financial and non-financial contributions you have each
made to the asset pool;
What homemaker and/or parenting contributions you have each
What each of your future needs are, for example – whether
one of you will have the primary care of the children under the age
of 18 years and whether one of you has a superior income earning
What other assets in the pool are available for division
A common scenario where a superannuation split occurs between
married couples is where the transfer of other assets, such as
property or shares, are insufficient to satisfy a spouse's
property settlement entitlements and thus the superannuation split
is needed to "top up" their assets.
Superannuation does not form a part of the asset pool for de
facto couples, but is considered in an assessment of the future
needs of each party. If one party, for example, has significantly
more superannuation, the other party may be entitled to a higher
percentage of property pool to compensate for the fact that they do
not have a significant "nest egg" for when they retire.
This may result in a moderately higher percentage allocation to the
spouse with less super, but will not result in a "dollar for
Superannuation can be complex so it is important to seek expert
advice from and experienced Family Lawyer.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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