The simple answer is – maybe but not automatically!
The Family Court and Federal Circuit Court considers a number of factors when deciding who gets what after separation. It is important to know that while you may not need to pay your ex any of your superannuation, it is considered to be a part of your joint property pool for division. Your property pool will also include any bank accounts, motor vehicles, property or shares held jointly with your ex or solely. You can read more on this here.
Your assets will not always be split 50/50 and this is certainly not the default position of the court. No two relationships are the same and so it goes without saying that no two property settlements are either. As you find yourself navigating through your separation and negotiating a property settlement, you will often find that friends and family may give you advice based on their own experiences. While this can be supportive and sometimes helpful it is important not to take this advice as gospel as your situation will almost certainly be different.
Property division is a weighing exercise that takes into account what is available for distribution, contributions and the future needs of both parties. Settlements reached between people outside of court often result in more workable and flexible arrangements.
For example: You come to an agreement with your ex that the joint property pool should be divided 50/50. The main asset is the family home which you want to keep in your own name but there is not enough equity available otherwise to balance out the scale. You could (1) borrow the cash or refinance a mortgage to pay your ex out or (2) make an adjustment out of your superannuation. In this case, your ex would be taking away the majority share of your combined superannuation.
It is important to seek legal advice before agreeing to any kind of property settlement with your ex. Capelin Law can assist you in working through the important steps to property division, including drafting the necessary settlement documents for finality and tax efficiency.
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