Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 22 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
An application for property settlement can be made immediately following separation and it is not necessary to wait until divorce. However, once a divorce has been obtained the application for property must be made within twelve months of the date of the decree absolute (a month after the divorce hearing).
If the application is not lodged within that time a person must prove to the Court that there are special circumstances which allow the application to be made late.
When a marriage or de facto relationship breaks down, superannuation can be divided between the parties.
For the purposes of a family law property settlement, super is considered to be property and can be transferred between spouses’ funds as part of a property settlement.
One of the first steps taken in property settlements is to identify the property of both parties available for division. Naturally, this includes the parties’ current assets and liabilities, but also includes any super that they may have.
As you are probably aware, you cannot usually access your super until you reach retirement age.
In the context of a family law property settlement, super can be transferred between spouses as part of a property settlement, which has been formalised in a way that the Court recognises. This is referred to as a super split.
However, a super split to a former spouse or de-facto partner does not mean that the party receiving the benefit of a super split will receive that transfer as immediate cash. It will simply be transferred as super into their nominated fund.
The legal rights of either party to access the funds will be identical to the rights they had before the super split.
In order for super to be divided between spouses, there a few requirements that need to be met. These steps put simply, are:
1. You will need to obtain a valuation of the person’s super interest you intend to divide.
2. You will need to document the proposed division. Super can be divided by way of an Order of the Family Law Courts (including Orders made by consent) or by way of a Superannuation Agreement. A Superannuation Agreement cannot be entered into without both parties having first received independent legal advice.
3. Once the proposed Order or Agreement has been drafted, a copy of the document will need to be sent to the relevant Superfund. The Superfund can require changes to the wording to ensure that the division is able to occur, pursuant to the particular rules governing the relevant fund.
4. Once the Order has been approved or made by the Court, or in the case of a Superannuation Agreement signed by the parties and their legal representatives, a copy of the Order or Agreement will then need to be served on the fund or the fund administrator so that the administrative process of a super division can occur.
Division of super can be quite complex and is subject to a raft of legislative requirements. We recommend that you seek legal advice before making any decisions regarding division of superannuation and property settlement generally.