10 Comments Family & de facto law, financial agreements, consent orders
Look it is a bit confusing and there ain't really any set rules... So when I separated after 7 yr relationship it was understood that I brought some of that super in before the marriage just like how her inheritance was accepted as something she brought in.
But even after 7 years together it was still kinda sorta accepted as a short marriage....
As far as looking for literature about 'pro rata' amounts or what ever... Look you won't find anything because there are no hard and fast rules. Dont believe me? then read this.
You might find some pretty elaborate online calculators... But I reckon they tend to show the bias of the person who created them. Certianly the courts don't have any 'calculators..."
Superannuation Is part of the property pool. They will look at its value when it came to the relationship, how it grew during, and what it is now, it's just one item they consider. So the total value at settlement is what is taken in the asset pool, how it is divided if at all depends really on the overall settlement.
Sonata - I kinda agree and I'd love to know your thoughts, but I still reckon it is all a bit vague - so for example my ex got more tangible assets BUT I got to keep more of my super. My solicitor justified this to me based on this logic:
She gets the benefits of the $$ now - where as I'll have to wait till I'm old and grey before I get my super and that also means I'm taking a gamble because my super could possibly crash....
In legal terms, it's case by case, but super is only one small piece of the property settlement pie. If my client was offered less tangible assets in exchange for retaining more of their super, I'd be inclined to explain the reality of super vs tangible assets.
Superannuation is all very conditional "maybe money". You might get it, you might die at 55, there's infinite rules about how you can and can't use it, and you don't really have any control over it until you can access it on retiring.
A house, however, is an asset you do have control over, and one that wil generally increase in value for resale, or otherwise is a reliable asset to have when you do retire.
But looking at it all in terms of property settlement, the court looks at the total value of the shared asset pool, rather than the value of each asset separately, so it's not as simple as husband gives wife 50% of super. It's more likely to be husband keeps house, car, super and pays wife $200,000.
in terms of how super fits into the shared asset pool, remember it only includes assets that both parties intended to benefit from jointly as a result of the marriage. HIS super account was not intended to benefit her until they married, and the same goes for HER super account. Thus, whatever was accumulated BEFORE the marriage in super would not usually form part of the shared asset pool
The starting point is to look at all assets and liabilities of both parties. Whether an adjustment is made depends on many factors. Contributions is one aspect, usually looked at in terms of what you brought to the relationship, during it and post separation. In a short relarionship you may take out a large part of what you briught in. Remember that 'just and equitable'.
I know this is a little off topic, but I recently read a case where both oarties counsel agreed five percent adjustment. The court decided 15 percent was merited.
Also, as an aside, my impression is, that if you read property judgements if one party appears to be uncooperative in disclosure or giving credit it seems to go against them. Courts have wide discretion, every case is unique,
As Eamon notes, super is often a future resource, and difficult to access early. If you don't stay around long enough to draw it, then it's not much consolation.