Am I entitled to my partner’s superannuation?
Your entitlement to a property settlement is automatic if you are a married couple and if you are a de facto couple, if you satisfy one of the following:
- You and your partner have lived together for two years.
- You and your partner have a child together.
- One of you has made a ‘substantial contribution’ and the absence of a property settlement would result in a ‘serious injustice’.
- Your de facto relationship was registered under a prescribed law of a State or Territory (in Australia).
There is a four-step process that the law adopts in determining an appropriate division of property. You can find out more by reading our blog ‘What does the law say about what I am ‘entitled’ to as part of a property settlement?’ .This same four-step process is adopted when deciding what an appropriate division of the superannuation might be after a couple has separated.
The law recognises that some couples might have superannuation entitlements that they accrued before they started living together. How that pre-relationship superannuation is dealt with can vary–whether an adjustment is made in the division of the superannuation pool to the person who had more (because of their initial contribution) or, simply dividing the total superannuation accrued by you and your partner during the relationship equally.
Both indirect (non-financial) and direct (being the financial) contributions are recognised in dividing superannuation.
The indirect contribution of a partner recognises, for example, the stay at home parent’s contribution, whereby if it were not for the stay at home parent looking after the children, then the working parent would not be able to go to work and contribute to their superannuation.
The direct contribution is the employer and employee member contributions to the superannuation fund.
You do not have to split superannuation as part of a property settlement. You can agree to leave it alone or alternatively if it were appropriate to divide the superannuation, the person who might be entitled to receive it could offset it—thereby receiving a little bit more of the assets that are not superannuation.
Superannuation should be carefully considered in reaching an agreement with your partner. Get in touch with us today for advice on superannuation and a property settlement.