When a relationship breaks down there is a lot of emotion and distress attached to making a decision to end that partnership.

Whilst most people give thought to whether or not the former matrimonial home will be sold or whether a partner can re-finance and take over the responsibility of that property, who will retain what furniture and chattels, how joint debts can be shared and who retains what assets and liabilities, rarely do people in these types of situations give thought to the asset held, usually, by each of them being superannuation entitlements.

Superannuation is accumulated by all Australian workers during their work life and as it is mandatory, it can be viewed as ‘forced joint savings’. As with any ‘monies in the bank’, although superannuation is not a cash resource as most superannuation funds cannot be simply ‘cashed out’ (unless you are in the middle of a global pandemic!), it is a financial resource which, like all joint matrimonial property, should be taken in to consideration when looking at the joint matrimonial property pool.

For those relationships where a party has perhaps accumulated more superannuation benefits than the other party because, perhaps, the other party was the primary homemaker and carer of the children of the relationships, superannuation is still considered to be a joint asset of the relationship.

As part of a Family Law property settlement between partners of an ended relationship, superannuation should be included in the Asset and Liability pool. There are many factors involved in calculating a just and equitable division of a joint matrimonial pool and as everyone’s circumstances and situation is different, such calculations are done on an individual case basis but, generally, in ensuring that the division of the joint property pool is just and equitable, superannuation held by one party can be assigned/transferred to the other party as part of those calculations for a just and equitable division of the joint assets and liabilities.

To ensure that parties to a relationship that has ended receive their ‘fair share’ of the joint matrimonial pool (being all assets and liabilities including superannuation) then they need to attend upon a legal representative who can assist them with calculating that division taking into account the length of the relationship, financial and non-financial contributions, future earning capacity, age of the children of the relationship and the primary care for those children so that negotiations can be entered into for a resolution of the division of the joint matrimonial assets on a just and equitable basis.

At SKC Lawyers we can assist you with discussing your particular situation and working out your entitlements in the event of a relationship breakdown. We offer an initial consultation which is free of charge but will give you a general outline of what you may be entitled to should you wish to proceed with formalising any agreement which may have been reached between yourself and your ex-partner or, if necessary, entering into negotiations with the ex-partner to resolve the division of the joint matrimonial pool.

Written by Sandie Chatterton, Principal Lawyer