If we split up, do we have to split our super too?
The percentage split of your superannuation will depend on a number of circumstances including the total of your current superannuation, your ability to work during and after the relationship and your future needs. This means that if you have been the sole carer of your children during the relationship and as such unable to work full time and accumulate superannuation, you will not be left without any superannuation heading into your future retirement. If you and your former partner can reach an agreement about your superannuation outside of court your solicitors can help you formalise this agreement. If you are unable to meet an agreement through alternate dispute resolution than your solicitor will help you make an application the court.
If the superannuation fund that you and your former partner were involved in is a self-managed super fund (SMSF) things can be a little more complicated.
In a SMSF the individuals involved are both the trustee’s and the members. Whilst you must fulfil both roles you also must separate these roles. This is an important distinction and one that is even more important when couples are in the process of separating.
When a couple separates, superannuation is an important issue to be taken into consideration. Since the introduction of the Superannuation Guarantee in 1992, the amount of money in superannuation is ever-increasing. When the superannuation is a self managed superannuation fund (SMSF), another layer of complexity is added.
Your solicitor can help you come to an agreement that removes you from the fund and therefore removes the chance of unnecessary conflict with your former partner at a later time.
When considering a superannuation split (especially if it involves a SMSF) it is important to get expert advice as there can be both legal and tax consequences. The ATO is always keeping an eye out and may conduct an audit to check that the splitting of the superannuation fund was the result of a genuine separation not just to gain tax benefits. We recommend getting the experts in from the very beginning that way you can ensure that your retirement is in good hands.