How long after separation & divorce can I claim superannuation?

We often get asked by people how long after separation and divorce can you claim superannuation? We asked family lawyer Andrew Andrianakis to shed expert light on this topic. Keep reading to learn how the  Australian legal system regulates this matter.

By Andrew Andrianakis, Lawyer at AFL Kordos Melbourne.

Some people ask, “How long after a divorce can you claim superannuation?” 

There is an issue with this question as there is a common misconception that divorce covers all aspects of the Australian Family Law process following separation (including the division of assets and superannuation). Divorce covers a small part of the process and deals with the administrative and legal termination of a marriage rather than the division of superannuation or property. 

The correct question which should be asked is, “How long after separation do I have to divide assets, liabilities and superannuation?”

To answer this question, it’s important to address the following:

• What is superannuation and how is superannuation treated in Family Law property division/settlement?
• What is the difference between divorce and property division/settlement?
• What is the time limit to make an application to divide assets liabilities and superannuation following divorce or separation for de facto couples?

What is superannuation?

Superannuation is one of the aspects of property division relevant to couples who have:

• An interest in superannuation; or
• Share an interest in superannuation with their former spouse; or
• Have separated from a spouse where there is a disparity in their respective interests in superannuation. 

Superannuation is a term used in Australia to describe pension benefit funds. There are various types of superannuation funds, such as accumulation funds, defined benefit funds and self-managed funds. It is important that you correctly identify what type of fund you and your spouse have interests in, as dividing each fund is approached differently. 

Superannuation forms part of the asset pool and can form part of the overall division of assets. Unlike liquid assets such as real estate, cars and money in bank accounts, superannuation is treated differently as the interest is controlled by a trustee and, therefore, may not be immediately available for distribution. 

What is divorce and what is property division? 

Divorce has its own legal definition and application within Family Law Act 1975 (Cth).

In simple terms, a divorce works to legally terminate a marriage, whereas a property division is designed to separate interests in assets, liabilities and superannuation. 

Divorce is significant as the law will officially recognise the termination of your marriage.

For divorce, there is no prohibition on time against a spouse from making an application to divide property following separation. However, once you have divorced, there are time limits for spouses to divide property once an order for divorce has been made. 

For divorced parties, the law provides you with one year to make an application for the division of assets, liabilities, and superannuation. 

It is important to obtain a divorce for the following reasons: 

1. You wish to re-marry and seek to start a new life with your new spouse.
2. In the unfortunate event you pass away without a divorce, the law will recognise you as being married despite you and your spouse separating. 
3. If you had a valid Will prepared during your marriage and you pass away before being divorced, then this would be considered as in force, and it is likely that this will benefit your ex-spouse and it will be considered still in force. 
4. If you pass away without being divorced but do not have a valid Will, then under the intestacy laws, your spouse can receive the majority of your assets. 

De facto relationships 

Property division, including superannuation, also applies to de facto relationships. 

De facto relationships are for spouses who are not married but, having regard to various circumstances, have been living together on a genuine domestic basis. The circumstances the law considers are as follows: 

• the duration of the relationship;

• the nature and extent of their common residence;

• whether a sexual relationship exists;

• the degree of financial dependence or interdependence, and any arrangements for financial support between them;

• the ownership, use and acquisition of their property;

• the degree of mutual commitment to a shared life;

• whether the relationship is or was registered under a prescribed law of a State or Territory as a prescribed kind of relationship;

• the care and support of children;

• the reputation and public aspects of the relationship.

A court will consider the above and determine whether a de facto relationship exists by attaching weight to any matter as may seem appropriate to the court in the circumstances of the case.

If you have not divorced and are still married, you can still be in a de facto relationship with another person. 

In the case of de-facto relationships, the time limit to make an application for the division, including assets and liabilities, including superannuation, is two years after separation.

It is important to note that de-facto relationships do not have the same level of protection afforded to married spouses following separation to finalise the division of assets, liabilities and superannuation. This is because divorced spouses can remain separated for a longer period than de facto parties, given that the limitation period commences once the parties have divorced. 

Applying out of time: 

If you have separated from a de facto relationship or obtained a divorce without applying to divide your assets within the time limits set out in this article, you can apply to the Court and seek leave to file an application out of time.

You’ll need to prepare and file court documents and demonstrate to the Court via your material filed that:

• That hardship would be caused to a party to the marriage/de-facto relationship or a child if leave were not granted; or 

• In the case of an application for maintenance of the party, the party’s circumstances were at the end of the application period such that they would have been unable to support herself without an income-tested pension, allowance or benefit. 

The court will exercise its discretion based on the facts of each case. 

How long after separation and divorce do you have to claim superannuation: A final note

It is important to consider the type of relationship you are in and their corresponding above time limits in assessing when attempting the division of assets liabilities and superannuation.  

Bearing in mind the issues surrounding unexpected deaths raised in this article, if you’re going to separate, it is important to provide notice to your superannuation fund and also consider changing the nominated beneficiary if your former spouse is listed under your binding death nomination. 

Need more friendly advice on how long after separation or divorce you can claim superannuation? If you’re seeking to file an application out of time, please contact this office immediately so we can organise a meeting with you and discuss your options.