A question we’re often asked as family lawyers in Perth, is ‘is my ex entitled to my superannuation?’.
Here’s what you need to know about what happens to your superannuation when you separate or divorce.
How is superannuation treated in a divorce?
Under Australian Family Law, superannuation is considered as an asset, making it permissible to be split when a marriage or relationship is terminated and it forms part of the overall divorce settlement.
Where it differs from other forms of assets, it is a sum that is held in trust. That means that neither partner may access the super until the funds becomes due, usually only at retirement.
It is also subject to numerous highly complex terms and conditions, requiring professional legal and financial advice.
Can my ex make a claim for part of my superannuation?
Your ex may certainly make a claim for part of your super, just as you are entitled to make a claim for theirs. However, certain criteria need to be factored into the valuation and splitting process.
Such conditions may include, but are not limited to:
- length of marriage or relationship,
- period of super contributions,
- individual contributions to the super fund/s,
- individual contributions to the overall relationship,
- age and health of both parties,
- children’s needs,
- individual parties needs and,
- individual earning capacities
Australian Family Law demands that splitting of assets, including superannuation, be fair and equitable, but may not necessarily mean that it’s a simple 50-50 split.
In most cases, the value of the super/s is added into the overall asset pool, and both parties may agree to “trade” their portion of the super for any other asset, as part of the final settlement. That means that both partners could receive superannuation, while negotiating a tailor-made agreement that suits their individual needs.
Can my ex make a claim for my superannuation if we were never married?
Under Australian Family Law, partners in de facto relationships have the same rights as legally married couples. A de facto relationship is defined as when two people have been living together “as a couple” on a “genuine domestic basis” for a minimum period of two years, but are not married. Sharing a room with a mate is not regarded as genuine de facto relationship.
In Western Australia, de facto couples are currently unable to split their superannuation, but instead may take it into account as part of the overall settlement. There is talk about changing this rule, but so far it has not happened.
Is there a time limit for my ex to make a claim for my superannuation?
Married couples need to claim within 12 months of the date of the Divorce Order, while de facto couples have 24 months from the date of separation to apply. It is however, advisable for all couples to start the process of separating their superannuation as soon as they separate.
In rare cases, the Court may allow an application after the prescribed period, if the party can prove financial hardship. This process is however, very complex, extremely costly, and without any guarantees that it will succeed.
Read more about de facto relationships and superannuation here.
What happens if we can’t agree on how to divide our superannuation?
Just as when couples cannot reach agreement on other matters, you will have no choice but to apply to the Court for an Order. The Court will seek a just and equitable settlement and apply the same formula and same terms and conditions to make the final ruling.
Want to find out more about how your superannuation might be split when you divorce? Get in touch with our trusted family lawyers in Perth at Hickman Family Lawyers.
Book your free 15-minute phone consultation where you can find out more about how we can help you and what options you have when it comes to your divorce.
