FAQ - Frequently Asked Questions

How Long After Divorce Can You Claim Superannuation

Justice Family Lawyers Sydney

Superannuation makes up part of your property and assets. Assets can be divided during a property settlement in court or privately between you and your former spouse if you can both come to an agreement. There is a time limit for filing an application for either financial orders (if you cannot come to an agreement and wish to start a court case to resolve the dispute) or consent orders (if you have come to an agreement and wish to have official court orders to reflect this).

For married couples, this time limit is from the date of separation up until one year after the divorce order is finalised. For de facto couples, this time limit is from the date of separation up until two years after the relationship breakdown. Superannuation is rarely considered separately in a property settlement in court. It makes up part of a couple’s combined pool of divisible assets.

This pool is all the assets to be shared between the two parties in a just and equitable manner by the court. There are differences depending on whether the superannuation fund in question is self-managed or regulated by the Australia Prudential Regulation Authority (APRA). For APRA-regulated superannuation funds, the court can decide to divide savings, or the parties involved in can agree to divide their superannuation savings.

The individual super fund in question will have rules as to how this can occur. For example, some super funds allow an immediate division of savings whereas in other funds people must wait until retirement to access their superannuation.

Regarding self-managed superannuation funds (SMSF), both parties must abide by the trust deeds of their funds. If they are part of the same SMSF, the parties cannot exclude each other from decisions or prevent them from transferring their superannuation savings to another fund.

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