How long after divorce can you claim superannuation?

Going through a divorce is never easy or simple. When it comes to the division of assets, you or your partner could be forced to surrender part of your superannuation if you divorce. 

You can file a claim for division of property – including superannuation – as soon as you divorce. However, the claim has to be filed within:

• One year after the divorce for married couples
• Up to two years from the date of separation for de facto couples

Claiming superannuation: married or de facto

If your relationship breaks down, your superannuation savings might be divided by court order or by agreement. The rules of the superannuation fund will dictate whether this transfer happens immediately, or in the future when the person who has to make the transfer is allowed to access the rest of their superannuation (i.e. at or near retirement).

Your superannuation could be affected even if you’re in a de facto relationship – that is, living together as a couple without being officially married. In that case, the claim has to be filed within two years of the date of separation.

Either way, the first thing to consider is whether you’re a member of a standard, APRA-regulated superannuation fund or if you’re a member of a self-managed superannuation fund (SMSF), because different rules apply.

Standard superannuation funds

As mentioned above, superannuation funds are considered an asset, just as property or shares may be considered an asset. You have up to one year to file a claim for division of superannuation funds after the divorce.

Funds regulated by APRA are governed by the Family Law Act 1975 and the Superannuation Industry (Supervision) Act 1993 (SISA), which states, according to the ATO, that a super interest' or a super payment may be divided or split by agreement or court order in the event of a relationship breakdown.

SMSFs

If your relationship breaks down, you must continue to observe the trust deed of your self-managed superannuation fund.

So, if you and your partner are both members of the same SMSF, neither party is allowed to use the fund to inflict ‘punishment’ – such as by excluding the other party from the decision-making process or refusing their request to roll their money into another superannuation fund.

This no-punishment rule applies even if the two parties are involved in legal proceedings. 

Financial consequences of splitting super

Superannuation funds often charge a fee for splitting accounts after a relationship breakdown. Splitting superannuation can also impact the size of your total super balance and how your super is taxed.

According to the ATO, the tax consequences from splitting super on relationship breakdown could include:

• “A super lump sum payment and pension paid to the member spouse and non-member spouse being taxed separately.
• Super lump sum components being calculated for member spouse and non-member spouse entitlements individually
• Amounts being included in your total super balance, which may affect your ability to contribute to super.”

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