VIC Will My Superannuation Rights Lessen?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

Helenaz

Member
1 May 2018
4
0
1
Hello everyone,

I have been married for 27 years. We have 2 older children living with us, 20 and 17. However, our marriage is over and I want a divorce. We have not shared a bed for over 2 years and sleep in separate rooms. My youngest son, 17, gets very upset if I exclude his father from the dinner table so I cook for us all so as not to upset my son.

Does this count as being separated under the same roof and therefore grounds for divorce?

My husband says we can't afford a divorce and he doesn’t want one so he wants the status quo to remain.

I have saved enough money to pay rent for a year but it would use it all up and after a year I would have no safety net at all. My husband doesn’t want a separation or divorce and so isn’t going to leave. I am very unhappy and want to go and start again somewhere without him.

Last year, my husband got a small inheritance which he has put into his superannuation fund. I currently have irregular seasonal casual work with few hours.

We have agreed that if we do divorce our older children can choose who they want to live with.

Our home is in both our names and almost paid off. I have a neligible amount in my superannuation.

My husband owns an overseas property in his name only.

My question is:

If I leave the family home will I lessen my rights to property and superannuation?

Many thanks for taking the time to read this and my apologies for the rambling nature of it.
 

AllForHer

Well-Known Member
23 July 2014
3,664
684
2,894
For context, a divorce will be granted where the marriage has broken down irreparably, as shown by a separation period of at least 12 months. It's unlikely the circumstances you've described will constitute separation under one roof. You can apply for a divorce as a sole applicant, but it may be dismissed until the 12-month period of separation has genuinely passed.

As to property settlement, you're entitled to seek a property settlement regardless of how the living situation changes. A property settlement can be made at any time following separation and can be whatever you and your husband agree to. Failing agreement, an application for property settlement can be filed with the Court up to 12 months after the divorce has been finalised.

If the Court is asked to decide, it will ask four questions:

1. What is the value of the shared asset pool?
2. What are the financial and non-financial contributions of each party?
3. What are the future needs of each party?
4. Is the settlement just and equitable?​

The above questions are asked as of the date of property settlement, rather than the date of separation or divorce. As such, the husband may be able to claim a higher financial contribution to the house consequential to your departure, but against a 27-year marriage in which your non-financial contributions will be considered to his financial contributions, and in light of you paying rent elsewhere, any impact it might have on the outcome will be so menial that it probably won't even come up in the evidence.

Some things to note, as well:

1. Both the overseas property and your savings will be considered as part of the shared asset pool against which you can both claim a property settlement.
2. Superannuation as part of a property settlement is still governed by superannuation laws, and as such, will not awarded as cash assets in property settlement. Instead, it would be split so that whatever portion you're granted will be transferred into your super fund and remain inaccessible until the appropriate criteria has been met.​

I hope this helps.
 

Helenaz

Member
1 May 2018
4
0
1
Yes that does help thank you for the information, and your time. There is a lot to digest and think about.
It seems that it might be best for me to try and work out a property settlement with my husband first and go from there.

Thank you again
 

sammy01

Well-Known Member
27 September 2015
5,152
720
2,894
Yep, you'll have a right to some of the asset pool. How much? Who knows. But super is a problem. You'll get it when you hit 65... Not tomorrow.

You've saved up some $$$ is he entitled to some of that? Yep - it is part of the asset pool.

Can you look for more work?

What about some marriage counselling?
 

Helenaz

Member
1 May 2018
4
0
1
Yep, you'll have a right to some of the asset pool. How much? Who knows. But super is a problem. You'll get it when you hit 65... Not tomorrow.

You've saved up some $$$ is he entitled to some of that? Yep - it is part of the asset pool.

Can you look for more work?

What about some marriage counselling?
 

Helenaz

Member
1 May 2018
4
0
1
Thanks for your input Sammy01,

Yes my savings will be taken into account as part as the asset pool, that’s fair.
Re the Superannuation as you say thats a while away seems so complicated I’m tempted to just leave it☹️
I had to give up my permanent job last year to help my daughter (she has a mild disability). I need to be around for her so work can be tricky. But I am well qualified and am able to get more work which will probably be necessary if I separate.
As for counselling, sadly it hasn’t resolved our differences. But that is another non legal matter which I could go on about for ever...

Thanks again for your reply
H