Is My Ex Entitled To My Super?

A common question family lawyers come across is whether superannuation is included in a property pool and can be accessed by an ex partner or spouse. In short, the answer is yes as superannuation, like any other asset, is recognised as ‘property’ under the Family Law Act 1975 and as such, it will need to be valued and included in the property pool that is available for division.

Often parties may have quite similar superannuation balances and choose to retain their individual superannuation interests and deal with the other assets available in the pool to achieve their desired overall division. However in other circumstances, such as where there has been a stay at home parent, there may be significant discrepancies in the superannuation value of the respective parties and it will then be necessary for the party with a higher balance to give some of their superannuation to the other party via a ‘superannuation split’.

A superannuation split is the method by which the Trustee of a superannuation fund will transfer superannuation funds held by one party, and distribute them to another. Importantly, unless the receiving party has reached their preservation age (which in most cases will be 65 years of age) or otherwise meets the other criteria for an early release of superannuation, the superannuation must stay as superannuation and cannot be converted to cash.

As with any family law matter, the specific answer as to whether you will need to make a superannuation split will depend heavily on the facts of your individual matter and we recommend tailored legal advice.