Is my Ex Entitled to Half my Super?
17 January 2023
“Is my ex entitled to half my super?”
This is another question I am often asked.
The answer is; it depends on the circumstances.
It should first be noted that superannuation does usually form part of the property pool, and so distribution of superannuation from one party to another is typically at least considered.
Even so, whether a superannuation transfer (commonly referred to as a ‘superannuation split’) is warranted in a family law property settlement depends on relevant circumstances pertaining to the relationship.
Relevant circumstances include the make-up of the property pool, the parties’ financial, non-financial and homemaker/parent contributions, and the future needs of the parties. Typically, the primary focus is on contributions as, if it cannot be established that the party seeking the superannuation split made meaningful contributions, even indirectly, it is difficult to argue that such party has a contribution-based entitlement.
That is, where one party has made far greater contributions, for instance by bringing substantially more property, including superannuation, into the relationship, a superannuation spit may not be warranted. This is particularly so where, for instance, the relationship was short, the parties did not have any children together, one party brought in significant property and that same party earned a higher wage during the relationship. In such matters, it would be argued, likely successfully, that the party who contributed more
In contrast, where parties each made significant contributions, including directly (by working) and indirectly (via homemaker/parent contributions which allowed the other party to work and thereby accumulate superannuation), it is likely that a superannuation split is warranted. It may not necessarily be that half of one party’s superannuation ought be transferred to the other though. Rather, a split of some other sum, such as an amount required to ‘equalise’ each party’s total superannuation balance, or a sum equal to half the amount of superannuation accumulated by one party during the relationship only, may be required. Ascertaining current superannuation balances and even the amount of superannuation accumulated during the relationship is usually quite a simple process involving obtaining superannuation statements, or sending a ‘Form 6 Request for Superannuation Information’ to the relevant superannuation funds.
The reality is, if you are contemplating or involved in a family law property settlement, you must recognise that each case turns on its own circumstances. As such, it is imperative that, at the earliest possible stage, you at least obtain advice from an experienced family lawyer. Through experience one gains the necessary knowledge and skills required to achieve just results.
