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Can my ex claim my superannuation after separation?


Can superannuation be divided?

Superannuation is treated as property after separation. So just like other assets, it can be divided.

Unlike other types of property, superannuation funds are held ‘on trust’. This means there are strict rules about when and how you can access it.

Does it apply to marriages and de facto relationships?

Superannuation can be split when married couples separate and also when de facto couples separate (including same sex de facto couples).

It can be a complicated process and there are rules that must be followed to comply Australian superannuation laws and family law.

Is it the same in all States & Territories?

The rules about dividing superannuation are the same everywhere in Australia except for in Western Australia. There is legislation pending in Western Australia which is expected to come into law which will bring it into line with the rest of the country.

What are the options for claiming a share of super?

There are 3 main options for dealing with super after separation.

Superannuation splitting

This is where the superannuation interest of one person is split and a portion of it is given to the other party.

A payment flag

A payment flag stops the superannuation fund from paying out any money until the flag is lifted (which usually means until the court decides on how it should be dealt with).

It’s a way of putting off the decision about what to do until another time.

Leave super untouched

People will sometimes opt to leave each party’s super untouched, but take the value of super into account when deciding on a fair property division.

Which option is best?

Each option has its pro’s and con’s. What is right for you depends completely on your circumstances.


This is a common and very popular method of dealing with superannuation.

It doesn’t change the rules about when the superannuation becomes available. If you receive some super under a split, you can’t take it in cash. Generally it will only be available when you reach retirement age.


This is less common.

It is sometimes used where a person’s interest is difficult to value, which can happen with defined benefit funds. A flag can also be used when one party is close to retiring - to prevent them from withdrawing their funds before a property division is decided.

Leaving super untouched

This is popular where the parties have similar amounts of superannuation. It is also necessary where the parties have very little super. The law won’t allow super to be split if it isn’t cost-effective. It has also been popular in WA with de facto couples, who don’t have the other options available to them.

What do you need to do? to get a super split or flag?

There is a process involved which requires a court order or a formal agreement, sometimes referred to as a Superannuation Agreement.

A court order can be made by a judge at a hearing, or by agreement which is known as a ‘consent order’.

A superannuation agreement is a formal written agreement. Each party must have their own lawyer and the lawyer is required to sign a special certificate.

What next?

Do you need help working out what to do next? We understand the process of separation can be confusing. Our Separation Guide is simple to understand and will take you through things step by step.

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