Superannuation and Divorce: How Long After Divorce Can You Claim Superannuation

Navigating the financial aspects of separation can be challenging. Therefore, people seek experienced divorce lawyers Perth WA, to protect their interests. Superannuation is one such domain that is occasionally tricky, especially when and how a person can access it following a divorce.

Australian superannuation is treated as property under the Family Law Act 1975 and can be divided between parties on the breakdown of marriage or de facto relationships. There are, however, considerable timelines, legislation, and procedures that decide whether and how a superannuation claim can proceed after divorce.

What Is Superannuation Splitting?

A superannuation split is the splitting of one or both partners’ superannuation interests in an overall property settlement after divorce. Rather than giving immediate access to cash, a super split generally rolls over some of the superannuation into the other partner’s super account. It will be available for ordinary preservation in the sense that it can only be accessed on retirement or other qualifying conditions.

Under Australian family law, superannuation is not viewed as some hypothetical future pool of funds; it is considered a form of property and can be adjusted to reflect each party’s contributions and needs.

Is Superannuation Divided Automatically After Divorce

No, superannuation is not divided automatically after a divorce. It must be dealt with by means of a binding agreement between parties or a court order. Suppose you and your former partner have made provisions for splitting superannuation. In that case, you can formalise this agreement using a Binding Financial Agreement or by applying for Consent Orders through the Family Court.

If an agreement is not attainable, the court may order a division of superannuation under the general asset settlement. Notably, the court looks at the entirety of the financial relationship, base contributions, and future needs to determine what is just and equitable.

Time Limits for Making a Superannuation Claim

The period during which superannuation may be claimed as part of a property settlement is co-extensive. However, there are general time limits for bringing proceedings for property settlement after the breakdown of the relationship.
For former spouses, the application must be made within 12 months of the date of absolute divorce. For de facto spouses, the limit is two years from the date of separation. An application beyond such time will require special permission from the court, which will only be granted in exceptional circumstances, e.g., hardship or serious injustice.

A legal separation lawyer can help determine the exact timeline applicable to your situation and whether you’re still eligible to make a claim. They can also assist with applying for permission to proceed out of time if needed.

When Is Superannuation Usually Valued and Split?

The superannuation value is calculated on the date of property settlement, not on the date of divorce or split-up. The Australian Taxation Office (ATO) and super funds can provide valuation information for defined benefit and accumulation funds. It is always advisable to obtain proper valuations, especially when one has more than one account or entitlement under any defined benefit scheme, which may require an actuarial assessment.

Once the values are settled, the parties can settle on a preferred split, equal or otherwise. Splitting superannuation doesn’t require a complete liquidation of the fund; it’s often a notional transfer to another fund, meaning the receiving party cannot access it until retirement age.

How Is Superannuation Handled in the Overall Property Settlement?

Superannuation is just part of the overall pool of assets, and the court has to consider many factors when dividing property. These include financial and non-financial contributions, the duration of the relationship, arrangements for child care, health, age, and earning capacity of the parties.

The split on divorce is not always 50/50. Instead, it’s trying to divide the super and non-super assets, liabilities, and contributions in the relationship in a multidimensional manner. This means that even if one partner’s superannuation is larger, they may retain a larger portion if they made greater financial contributions or took on more financial risk.

Can You Claim Superannuation Years After Divorce?

You usually can’t claim superannuation if you have been divorced for over 12 months unless you seek leave of the court. It is not automatic. You will have to demonstrate that hardship will follow if leave is not granted, and your case has merit. You will

If a superannuation interest was not addressed at the time of divorce and a final property order was made, you may have limited or no ability to revisit the issue. In that case, you will no longer have or only have limited chances of having this issue reviewed. It is for this reason that you must ensure that superannuation forms part of the process of the early settlement of property.

Conclusion

Receiving superannuation payments in the context of divorce requires prompt accuracy, correct financial information, and proper legal documents. Left out of the original property transactions, superannuation payments are likely to be difficult to obtain later in life, especially if the time frames have expired.

No matter if you’re newly split or putting finances in order along the way, it is essential that you sit down with an experienced legal separation lawyer. They can help get your entitlements properly addressed, enforceable terms settled, and your financial future safeguarded.