How long after divorce can you claim superannuation? Family laws regard superannuation as part of your property and assets pool. Usually, family law proceedings handle asset division between you and your ex-spouse. That is if you both agree privately or during a property settlement in court. Superannuation constitutes part of a couple’s combined pool of divisible assets. As such, it is hardly ever considered separately in a property settlement in court.
A common question regarding superannuation is just how long after divorce can you claim superannuation? – There is in fact a time limit for filing an application for both financial orders and consent orders. Ultimately, the answer to this question depends on just what type of super fund the couple has and the various rules surrounding it.
The following article will help provide some clarity on the types of super funds out there, and the various rules around them which you should be aware of.
What are Financial and Consent Orders?
Financial orders are for when you cannot come to an agreement, and desire to commence court proceedings to resolve the dispute.
Consent orders are for when you have come to an agreement and wish to have official court orders to reflect this.
Time Limits – How Long After Divorce Can You Claim Superannuation?
1. Married couples – from the date of separation up until one year after the finalisation of the divorce order
2. De-facto couples – from the date of separation up until two years after the relationship breakdown
Types of Super funds
There are different rules which apply depending on whether the superannuation fund is self-managed or regulated by APRA.
Standard Superannuation Funds
The question of how long after a divorce you can claim superannuation does not have a clear-cut answer. This is because some super funds may have an immediate division of savings, whereas other funds require people to wait until requirements are met to access their superannuation.
The rules of the super fund will determine if this transfer happens straight away or in the future, typically around the time of retirement.
See here for more information.
How Long After Divorce Can You Claim Superannuation: Self-Managed Super Funds
Following the breakdown of your relationship, the trust deed of your self managed superannuation fund must continue to be abided by.
What if both you and your partner are members are of the same self-managed super fund? If this is the case, you may not use the fund to inflict punishment by either:
-
refusing your ex-partner’s request to roll their money into another super fund.
OR
-
excluding your ex-partner from the decision-making process.
OR
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Commence any action not permitted by the self-managed super fund’s trust deed or the Superannuation Industry (Supervision) Act 1993
See here for more information.
Note: These rules are still applicable even when the parties are in legal proceedings.
How Long After Divorce Can You Claim Superannuation: Breach Of Rules
- Your self-managed super fund can be made non-complying, and accordingly be subject to substantial tax penalties.
- You may be also disqualified as a superannuation fund trustee. This will prevent you from operating a self-managed super fund in the future.
It is vital to contemplate these matters in a relationship breakdown, whether it be a marriage or a de facto relationship. Nevertheless, they are applicable to all relationship breakdowns such as:
- Mother and Daughter
- Father and Son
- Uncle and Niece
- Amongst Friends
- Etc.
It can get confusing as to what exactly your responsibilities are as a trustee. If you are unsure about what, give JB Solicitors a call on 1300 287 911 or email us at enquiries@jbsolicitors.com.au
‘In Specie’ Super Assets
A trustee may acquire assets from a related party of the fund as a result of marriage breakdown. Legislation has also widened the scope of ‘breakdown’ to encapsulate both same-sex sex and opposite-sex de facto relationships. Moreover, transitional exemptions provisions apply to in-house assets. This is where each party receive their share of assets because of a relationship breakdown.
These changes are applicable to assets acquired from the 17th of November 2010.
Fees and Penalties
Superannuation funds typically have a fee for splitting accounts. The split can also impact the amount of your total superannuation balance and superannuation taxes.
Seeking Legal Advice From Divorce Lawyers
If need to seek independent legal advice with your divorce settlement matter and hold concerns for the protection of your superannuation, it’s time to find a reliable and experienced divorce lawyer.
Here at JB Solicitors, we will make the process as pain-free as possible. We have fixed-free pricing, giving you a clear sense of the costs from the start, and will be sure to help you out every step of the way.
With years of experience under our belt on superannuation laws, we pride ourselves on making each client’s divorce settlement experience as easy as possible. If you would like to know exactly how long after a divorce you can claim superannuation.
Contact JB Solicitors if you need help on splitting superannuation, assistance with a binding financial agreement, or any other relevant family law proceedings.
More Articles
Find out more about divorce property settlements by reading some of our other articles:
How are Assets Divided in a Divorce in Australia?
What Happens to My Inheritance In A Divorce Settlement in Australia?
