Why can my ex touch my superannuation?

In family cases in Australia superannuation (super) is considered a form of property and is subject to division just like other assets such as the family home or financial investments. If you’re wondering why your ex-partner might receive a portion of your superannuation in a property settlement, here’s why:

1. Superannuation as Property: The Family Law Act 1975 recognises superannuation as a part of the pool of assets to be divided between parties in a relationship breakdown. When a couple separates, the court looks at all assets, including superannuation, when determining an appropriate financial settlement.

2. Contributions: The court considers both financial and non-financial contributions made by each party to the relationship. This includes direct contributions (e.g. income earning, saving money) and indirect contributions (e.g. homemaking and parenting or supporting the other party in their career). If your ex-partner has made significant contributions to the relationship, even if they were not directly contributing to the superannuation, the court may consider a portion of your super to be part of the overall settlement.

3. Fair Division: The aim of the court is to achieve a “just and equitable” division of assets, taking into account factors like the length of the relationship, the parties’ financial and non-financial contributions, future needs (e.g. care of children, earning capacity”), and other relevant considerations. If your ex-partner has been out of the workforce for a period (perhaps to care for children), they may be entitled to a share of your super to reflect their contribution to the relationship.

4. Superannuation Splitting Orders: If you and your ex-partner agree on a settlement, the division of superannuation can be formalised through a superannuation splitting order. If there is a dispute, the court can issue such an order to divide the superannuation in a way that reflects the overall financial settlement.

So, in short, your ex-partner might receive part of your superannuation to ensure an equitable division of assets, acknowledging both parties’ contributions and future needs. The exact share depends on the specifics of the case, including the length of the relationship and the individual circumstances of both parties.

If you have any questions regarding your property settlement and superannuation please contact us today for a confidential discussion.