Superannuation is an integral part of a couple’s divisible asset pool. In the event of a divorce, it is typically considered alongside other property and assets for division either through a private agreement or during a court-ordered property settlement.
Time Limits for Claiming Superannuation
- Married Couples: For married individuals, the time limit to apply to the superannuation division as part of a property settlement is up to one year after the divorce order is finalised.
- De Facto Couples: In cases of de facto relationships, parties can seek superannuation orders within two years from the date of separation. This also applies to cases where a child is involved in the relationship, even if the relationship duration was less than two years.
Misconceptions and Clarifications
It is a common misconception that the process of filing an application for divorce directly involves the division of assets, including superannuation.
However, divorce primarily deals with the legal termination of a marriage whereas the division of superannuation is a separate process that needs to be actioned within the specified time limits after separation or divorce.
Applying Out of Time
If the stipulated time limits have lapsed, individuals can still apply to the family court seeking leave to file an application out of time.
However, this requires demonstrating factors such as the existence of a substantial case for a property settlement order and evidence that not allowing the application would cause significant financial difficulty either to a party to the relationship or to their children.
Also read: Can You Apply for Divorce Before 12 Months
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Additional Considerations
- Superannuation Preservation Rules: It is important to note that despite a divorce or separation, superannuation remains subject to the general superannuation preservation rules. This means that you cannot withdraw superannuation into your personal bank account as a direct result of a divorce.
- Types of Super Funds: The specifics of claiming superannuation also depend on the type of super fund involved and the various rules surrounding it.
🔑 Key Takeaway: It is crucial to understand the time limits for claiming superannuation post-divorce or separation, as these vary depending on whether the relationship was a marriage or a de facto partnership. Seeking legal advice is recommended to navigate these complexities and ensure your rights and entitlements are adequately protected.
Seeking Legal Advice: An Essential Step
To navigate the complexities of claiming superannuation after divorce or separation, seeking legal advice is strongly advised.
Legal experts can provide tailored advice based on your unique circumstances, ensuring your rights are protected within the legal framework.
They can assist in understanding the intricate rules surrounding superannuation funds, advise on the appropriate steps to take within the designated time frames and help file applications out of time if necessary.
Engaging with a legal professional offers peace of mind and a more straightforward pathway through the often complicated post-divorce financial landscape.
Frequently Asked Questions (FAQs)
What is Superannuation?
Superannuation, often referred to simply as ‘super,’ is a long-term savings arrangement in Australia designed to provide people with an income in retirement.
It’s a compulsory scheme where money is placed into a super fund by employers and, optionally, by individuals themselves.
The funds in super are invested and grow over time, providing financial security for individuals when they retire.
Also read: Step Parent Adoption Without Bio Father Consent
Can Superannuation be Accessed Before Retirement?
Generally, superannuation is preserved until retirement and cannot be accessed early.
However, there are specific circumstances under which early access may be granted, such as severe financial hardship, specific medical conditions, or on compassionate grounds.
It’s important to note that these circumstances are strictly regulated, and legal advice is recommended to understand your eligibility for early access.
