Superannuation is regarded as part of your property and assets pool. These assets can either be divided amongst you and your ex-spouse if you both come to an agreement 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 is being dealt with 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?
- Married couples – from the date of separation up until one year after the divorce order is finalised.
- 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.
Self-Managed Super Funds
Following the breakdown of your relationship, the trust deed of your self-managed super fund must continue to be abided by.
If both yourself and your partner are members are of the same self-managed super fund, 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.
- excluding your ex-partner from the decision-making process.
- 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 engaged in legal proceedings.
If You Are In Breach Of Any Of These 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 trustee – which 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 partnership. Nevertheless, they are applicable to all relationship breakdowns such as:
- Mother and Daughter
- Father and Son
- Uncle and Niece
- Amongst Friends
‘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. Additionally, transitional exemptions provisions are applicable to in-house assets – where assets are acquired as the result 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 how your superannuation is taxed.
Hire the Best Divorce Lawyers Today
If you seek help 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, 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 to get started on your Divorce Settlement matter, or for assistance with any other legal matter.
Find out more about divorce property settlements by reading some of our other articles: