When separation and divorce occur, the assets of the parties involved are divided as part of a property settlement. And, just like debt split, superannuation comes into play.
Superannuation makes up a part of the asset pool, and so, if you find yourself wondering: Is my ex-wife entitled to my superannuation? The short answer is yes.
If you are married – after a divorce is finalised, your ex-wife or partner is entitled to make a claim for your superannuation for up to a year.
If you are in a de facto relationship – after separation, your ex-partner is entitled to make a claim for your superannuation for up to 2 years post the separation date.
In this guide, we explain how superannuation is regarded from a legal standpoint, and how superannuation is divided within the courts and outside of it.
How is Superannuation Viewed in a Divorce
The Family Law Act 1975 generally views superannuation as property that should be split during a divorce. However, it is not the same as other assets because superannuation is usually held within a trust – so it won't be converted into a cash asset.
How the court will divide superannuation will depend on whether the fund is self-managed or if it's regulated by the Australia Prudential Regulation Authority (APRA).
If the fund is self-managed, the parties involved have to abide by their fund deeds. Different super funds have different rules and some will allow an immediate division of assets, while other funds will require that the parties involved wait until retirement or preservation age before they can access superannuation.
A good way to start this process is to write to the superannuation fund's trustee and inform them that you may need to split your superannuation if you and your ex-partner obtain superannuation splitting orders.
How Long is My Ex-wife Entitled to My Superannuation
As stated previously, individuals who were party to a marriage can apply to the court for superannuation orders for up to 12 months after the divorce orders are issued. For parties who are separated and seeking or waiting for divorce orders to be made by the court, the parties can apply for superannuation at any time during this process.
For de facto relationships, parties can seek superannuation orders within 24 months from the date of separation. Furthermore, for a party to be eligible to seek superannuation orders, they would have to have been party to a de facto relationship that continued for two years. If there is a child involved, however, the two-year rule does not apply.
If you are outside of these periods and still want to make a claim, the court may grant leave to one of the parties to obtain superannuation orders if they are experiencing significant financial hardship, and have a strong claim.
How Much of my Superannuation is My Ex-wife Entitled to?
Property settlements don't need to take place in courtrooms and good property settlement lawyers do their best to reach an equitable and amicable agreement for their clients to ensure their needs are being met.
Generally, the parties involved in a separation or divorce will negotiate the split of assets, including superannuation. Factors such as the financial status of each party, their financial responsibilities, and contributions and duration of the relationship will determine how superannuation is divided.
That means that the division of superannuation will vary according to each couple.
Example:
If your ex-wife or partner made only domestic contributions in the relationship and did not hold a job, they may be entitled to more of your superannuation than if they also had a job and were accruing super during the relationship.
If you, your ex-partner, and your legal teams do not agree about asset division (including superannuation), you can apply to the court for an order.
How long after divorce can you claim superannuation?
You must apply to the court for a superannuation splitting order within 12 months of your divorce order becoming final.
If you miss this deadline, you might still be able to apply but only if the court grants you special permission. You would need to demonstrate that not doing so would cause hardship.
How will my superannuation be split in the court?
During a divorce or property settlement, the court seeks to divide the asset pool in a just and equitable manner. To do that, the court takes into account:
- The length of the relationship (marriage or De Facto)
- Valuation of the Superannuation of each party
- Financial contributions of each party during the partnership
- Domestic (and other) contributions made during the partnership
- The welfare of children or dependents
- Differences in income between the parties
- The financial responsibilities of each party
While the division of the asset pool is rarely 50/50, superannuation is the exception to that rule in some instances. If the parties' relationship started when neither had much superannuation accumulated, at the time of asset division, superannuation will be distributed between the parties in a manner that leaves each party with a similar amount.
Variations in superannuation division will occur, however, depending on the factors listed above and the negotiations between the parties involved, their legal representatives and the court.
Getting legal assistance
If you're still confused about "Is my ex-wife entitled to my superannuation", or how much of your super your ex-wife may be entitled to, consulting with a good legal expert is a great way to learn more about your and your ex-partner's rights and entitlements when it comes to matters of divorce and property settlement.
So, if you find yourself in the difficult stages of a relationship breakdown, divorce or property settlements and want to learn about the steps you can take to protect your assets, get in touch with one of our solicitors for a confidential discussion.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
