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Is my Ex Wife Entitled to my Superannuation?

Is my Ex Wife Entitled to my Superannuation | Justice Family Lawyers

When separation and divorce occur, the assets of the parties involved are divided as part of a property settlement. And, just like debt split, superannuation comes into play.

Superannuation makes up a part of the asset pool, and so, if you find yourself wondering: Is my ex-wife entitled to my superannuation? The short answer is yes.

If you are married – after a divorce is finalised, your ex-wife or partner is entitled to make a claim for your superannuation for up to a year.

If you are in a de facto relationship – after separation, your ex-partner is entitled to make a claim for your superannuation for up to 2 years post the separation date.

In this guide, we explain how superannuation is regarded from a legal standpoint, and how superannuation is divided within the courts and outside of it.

Superannuation and Divorce

The Family Law Act 1975 generally views superannuation as property that should be split during a divorce. However, it is not the same as other assets because superannuation is usually held within a trust – so it won’t be converted into a cash asset.

How the court will divide superannuation will depend on whether the fund is self-managed or if it’s regulated by the Australia Prudential Regulation Authority (APRA).

If the fund is self-managed, the parties involved have to abide by their fund deeds. Different super funds have different rules and some will allow an immediate division of assets, while other funds will require that the parties involved wait until retirement or preservation age before they can access superannuation.

A good way to start this process is to write to the superannuation fund’s trustee and inform them that you may need to split your superannuation if you and your ex-partner obtain superannuation splitting orders.

Ex-wife Entitlement to Super

As stated previously, individuals who were party to a marriage can apply to the court for superannuation orders for up to 12 months after the divorce orders are issued. For parties who are separated and seeking or waiting for divorce orders to be made by the court, the parties can apply for superannuation at any time during this process.

For de facto relationships, parties can seek superannuation orders within 24 months from the date of separation. Furthermore, for a party to be eligible to seek superannuation orders, they would have to have been party to a de facto relationship that continued for two years. If there is a child involved, however, the two-year rule does not apply.

If you are outside of these periods and still want to make a claim, the court may grant leave to one of the parties to obtain superannuation orders if they are experiencing significant financial hardship, and have a strong claim.

retirement fund 2 - is my ex wife entitled to my superannuation

How Much of my Superannuation is My Ex-wife Entitled to?

Property settlements don’t need to take place in courtrooms and good property settlement lawyers do their best to reach an equitable and amicable agreement for their clients to ensure their needs are being met.

Generally, the parties involved in a separation or divorce will negotiate the split of assets, including superannuation. Factors such as the financial status of each party, their financial responsibilities, and contributions and duration of the relationship will determine how superannuation is divided.

That means that the division of superannuation will vary according to each couple.

Example:

If your ex-wife or partner made only domestic contributions in the relationship and did not hold a job, they may be entitled to more of your superannuation than if they also had a job and were accruing super during the relationship.

If you, your ex-partner, and your legal teams do not agree about asset division (including superannuation), you can apply to the court for an order.

Claims

You must apply to the court for a superannuation splitting order within 12 months of your divorce order becoming final.

If you miss this deadline, you might still be able to apply but only if the court grants you special permission. You would need to demonstrate that not doing so would cause hardship.

Split in Court

During a divorce or property settlement, the court seeks to divide the asset pool in a just and equitable manner. To do that, the court takes into account:

  • The length of the relationship (marriage or De Facto)
  • Valuation of the Superannuation of each party
  • Financial contributions of each party during the partnership
  • Domestic (and other) contributions made during the partnership
  • The welfare of children or dependents
  • Differences in income between the parties
  • The financial responsibilities of each party

While the division of the asset pool is rarely 50/50, superannuation is the exception to that rule in some instances. If the parties’ relationship started when neither had much superannuation accumulated, at the time of asset division, superannuation will be distributed between the parties in a manner that leaves each party with a similar amount.

Variations in superannuation division will occur, however, depending on the factors listed above and the negotiations between the parties involved, their legal representatives and the court.

Getting legal assistance

If you’re still confused about “Is my ex-wife entitled to my superannuation”, or how much of your super your ex-wife may be entitled to, consulting with a good legal expert is a great way to learn more about your and your ex-partner’s rights and entitlements when it comes to matters of divorce and property settlement.

So, if you find yourself in the difficult stages of a relationship breakdown, divorce or property settlements and want to learn about the steps you can take to protect your assets, get in touch with one of our solicitors for a confidential discussion.

89 thoughts on “Is my Ex Wife Entitled to my Superannuation?”

  1. Hi i was just recently granted a divorce yesterday. I was wondering if i am entitled to my x husband superanuation? Its a short marriage that just lasted 1 and half year I have no contribution at all with what he has and we have a 5yrs old son. Thank you

    1. Hi. Even though it was a relatively short relationship, the fact that you were married and that you have a child together allows you to make a claim for a property settlement. His superannuation will be considered part of the matrimonial asset pool, and you could recieve a portion of the super and any other assets that either of you own. In this situation, you are entitled to superannuation.

    2. Hi, how many percent of my ex’s super im able to claim? Weve been together for 6 yrs and no kids at all. And how is process in claiming it? It is in cash or transfer to my super either? Thank you in advance!

      1. Hi, you will receive the super as a transfer to your superfund.

        It is hard to estimate what percentage you will receive. If there are no children together and the relationship was 6 years, you will need to demonstrate that you in someway contributed to him earning that amount of super.

        1. I was married for 20 years , now been 10 years since our separation 8 years divorced I couldn’t afford to fight for 1/2 his super so walked away
          Am I still entitled to it for the time we were married

          1. It would not be a straightforward case. The court would want to know why the application was made out of time. If you can provide sufficient reasons to explain why it was done out of time, then you could possibly be successful.

        2. My separation date was 1 July 2020 and divorce was finalised on 19 Dec 2021. The super was not split on mutual consent back then. Can my ex come back now and claim the super legally?

        3. I divorced my ex husband last month and am considering claiming part of his super to pay for 2 of our children’s braces, what would this look like

          1. Whether you can successfully make a claim for part of your ex-husband’s superannuation or other financial resources would depend on various factors. This may include the length of your marriage, the financial and non-financial contributions you have each made during the marriage, whether any existing property settlement has taken place and if there are currently any existing child support arrangements. I recommend that you consult with a family lawyer to receive advice on your situation.

        4. Hi
          I have been separated from my wife for over 8 year’s
          Could never afford a divorce
          Now that I may be able to
          Can my wife still claim on my super fund if we divorce now after so long
          Thanks

          1. Yes, your wife may still have a claim to your superannuation even after an 8-year separation if you haven’t formally divorced. In Australia, the length of separation doesn’t automatically negate a spouse’s right to claim a portion of the other’s superannuation during a divorce. It would be advisable to seek legal advice from a family lawyer to better understand the legal implications of your separation and divorce matter.

    3. Hi I have been married for 3 years and my husband is getting a divorce he doesn’t own much but has a large supper. Can claim any money out of supper we don’t have any kids together. He is also my financial person who pays for everything.

      1. Hi Emma, entitlements to a spouse’s superannuation depend on both financial and non-financial contributions made by each party to the marriage. Given that your husband has been the primary financial provider and that your marriage duration is relatively short at three years, with no children involved, the potential for a significant claim on his superannuation might be limited. However, for personalised advice that takes into account your specific circumstances it is advisable to consult with an experienced family lawyer.

  2. I’ve been separated from my partner for 13 years, but not legally divorced. Is my ex entitled to my superannuation if I divorce her this year? And how much? I’ve been told that she’s only entitled to what was in there, when she left, 13 years ago.

    1. Hi Kim, whilst she still technically does have a claim on the super, it is likely that it will be based on the value at the time of separation. This could change depending on various factors i.e. are there any children of the relationship and how long was the relationship.

      1. Hi my husband has left me 3 times the marriage is over we were together for 15 years am I entitled to some of his super thanks

  3. Hi, I have been separated almost 4 years but I am not divorced from my ex. We have a 16 year old kid. We lived together for 13 years. How much I am entitled to get from his superannuation. Am i entitled to what he had at that time or more?

    1. Hi Lyn, it is likely that you will recieve close to an equalisation of superannuation – this means looking at your superannuation and his superannuation, then making a super spplit to balance this out.

      1. Hi Shkara, I’ve recently left my 6 year de facto relationship where I raised my partners 4 children as well as my 2 children whilst he worked a fly in fly out job.
        I worked around his younger kids (as mine are now older) and on ABN, so I have made barely any contributions to my own super as he was doing the max voluntary contributions on his own and has well over 150k. He earns more than 4 times the amount that I do. And I lost a lot of earning capacity supporting his children and his career. What would I be entitled to please? We also lived separately last year for 6 months (but were still together) whilst we fixed some issues in the relationship. Will this change anything please and if not, what would I be entitled to in regards to superannuation please?

        1. It is really hard to determine based on that information as we would need to know what you had prior to the relationship and what you both contributed during the relationship.

  4. Hi from Kerry
    I have been divorced for over 15 years to a husband of 22 years.
    I have had six children to my ex husband.
    When he left he paid me $20,000 to pay off credit card debt to which he was attached. He then paid fortnightly payments to pay for food etc for our children. Can I now claim part of his superannuation ?

    1. Hi Kerry. There is a limitation period of 1 year after divorce to finalise your property settlement and seek a split of superannuation. It is likely that with the large passage of time, it would be very difficult/unlikely that you will be able to now make a claim.

  5. My son is going through a divorce and has no extra funds as he pays the mortgage and every other Bill that comes in his house, and Needs to access a Solicitor to act on his behalf
    Can he Claim a portion of his Superannuation under the Hardship clause to pay for legal service

    1. Hi Karl, Yes it might be possible for him to do this however it is up to the discretion of the ATO through Services Australia. Alternatively, law firms like our own are able to act for clients that ‘pay upon settlement’

  6. Hi my husband has left me 3 times the marriage is over we were together for 15 years am I entitled to some of his super thanks

    1. Hi Lesley, yes you are most definitely entitled to superannuation as you were in a long relationship with your husband. Please contact our office if you would like more information in a free consultation.

      1. If you’re separated but not yet divorced, you still may have rights to claim a portion of your husband’s superannuation. This entitlement would be assessed during formal property settlement proceedings, which take into account various factors such as the length of the relationship, contributions made by both parties (financial and non-financial), and future needs. It’s important to engage a family law solicitor to navigate this process, as they can provide detailed advice tailored to your situation and help ensure a fair division.

  7. Hi there, My ex-wife (11yr marriage) and I seperated 7yrs ago, and we are not currently divorced (we have 2 children). I recently received a tpd lump sum claim into my superannuation.

    My question is, is she entitled to some of my recent tpd payment (7yrs later, after separation without a divorce) within my super, or is she only entitled to the value at time of separation?

  8. Good morning
    My partner and I had been together 14 years and have now separated. I sold my house and put the $340k into the relationship (deposit for new house), and he came with debt. He earns 3 times me and therefore has considerable super. I want to do a 50/50 split (claiming 14 years of super for when we were together). He isn’t comfortable with that as he has said he has put in 70% of earnings compared to my 30%.
    Can you please advise where I might stand in getting 50/50 split.
    Thanks, Di

      1. Hello

        No children together. My children over 18 years old but his children were 14 & 15 years old when they come to live with us.
        Thanks Di

  9. Hi,

    My Spouse and I are looking at separating with a view to divorce, we have been married 25 years all our kids are grown up. I am nearing retirement age I will be 67 in 9 years and I am 9 years older than my wife. Will this be taken into consideration when it comes time to split the super, I have a considerable amount more than my wife but my wife can work for an extra 10 years or so but I need the super to retire.

    Thanks in advance

    1. Hi Sam. Yes it definitely is a consideration – it appears that you may have a higher future need than your wife. Just keep in mind that super will be part of the asset pool as a whole, so it is not the only thing that will be divided. You could argue that you have more future needs and you should get a higher percentage split of the asset pool (between 0-5% more)

  10. HI. I have been separated with my ex for 9 years. We have 5 kids, 18yo, 16yo, 14yo, 12yo and 9yo. I left our property for her and the kids. Currently no 2 nd 3 stay with me. I regularly pay for child maintenance for our 4 kids.
    Can she claim my superannuation ? How much ?

    1. Hi Peter. Due to the long period of separation, it would be difficult for her to make a claim on your superannuation. If you have not gotten divorced yet, then technically she could still make a claim as she is not out of time. However it would be more than likely be backdated to the time of when you separated, and it would also take into account the property that you left her.

  11. Hi, how many percent of my ex’s super im able to claim? Weve been together for 6 yrs and no kids at all. And how is process in claiming it? It is in cash or transfer to my super either? Thank you in advance!

  12. I was married for 16 years and for 13 years of that marriage I worked offshore for a company that did not pay superannuation. would my soon too be ex wife have a claim on my super given most of my super was learnt before I met her?

    1. Hi, yes the superannuation would still be included in the pool as it was a long marriage. It could be categorised as an initial contribution meaning that you might be up overall on an assessment of contributions. Read our article on how are assets divided in a divorce.

  13. Hi, my ex and I have been divorced for over 10yrs, no kids together. He left me with the house and goods, at that time I lost my job and was unable to keep house, we split the money (37ooo,oo) each and I was left homeless, due to paying outstanding bills. At that time I didn’t realise that I could of kept the house owing only $40,000 on it through my super. Am I entitled to receive anything from him now ?

    1. Hi Marie, because of the long duration between divorce and making an application for a split of assets, you would need to justify to the court what the cause of delay was. You should speak to one of our lawyers for more detailed advice.

  14. Hi Hayder,

    My daughter’s father and I have never been classed as a relationship he has no contact with her but pays child support. We have known each other for 11yrs and now have an 8yr old daughter I have seen him a couple of times over the years as recently as last month (without my daughter) am I entitled to his super as I have 100% care of his daughter? And if so how would I go about making a claim?

  15. Hi Hayder,

    My husband and I been married for 9 years and no kids. I had my divorce on Dec 31,2021. I didn’t claim is that possible to claim from his super? Please help me.

    thank you.

      1. Hi Hayder,

        Married in 1986 after 5 children, separated 2008, divorced in 2011, my ex husband now wants a property settlement and my super. Still have 3 adult children living with me in family home. What can l do.

        1. Hi sally, it seems like it is very much out of time. You should get some legal advice from our firm, but he has an uphill battle to climb to explain why the claim is 11 years late.

          1. Hi my partner and I seperated 18 months ago. When I left we got a conveyancer to help us out with the house so he could pay me enough to get a house. We were together for 22 years and we’re trying to work things out up until a couple of months ago. I am still on his super and our car is still in both our names. We have two kids together that we share. Would I be entitled to a percentage of his super?

  16. Hello
    I was in a same sex relationship since 2009 and we got divorce in January 2020
    We were in a de facto relationship since 2009 until May 2016, when we went to get married to new Zealand as it was not possible legally in Australia at that time.
    At the beginning of our relationship we lived in my partners house in Brisbane, then the floods came and he sold the house and we moved to the sunshine coast where he bought a house and got a mortgage, during that time we lived in the house and always share the bills and for 3 years I pay 2000 for the mortgage, the problem is that I always gave him the money in cash so got no records of it.
    We had a partner agreement but then we got married in 2016 and made no agreements then.
    We travel to Colombia in 2017 and we stayed in Colombia and got divorced in Colombia in January 2020.
    At that time I really trusted he was going to do the right thing but this is the time and he hasn’t come forward with anything other than a promise of giving me 30.000 of the selling of the house he had put for sale for 975.000,when we got the house it cost around 400.000.
    He has change all the time the amount he was gonna give me and every time is less.
    He is now in Australia and I am still in Colombia, I am thinking he is not gonna give me anything and I am looking for legal advice now.
    Someone told me I only had 2 years after the divorce for the settlement and it has been now longer than 2 years is almost 3 years, but I haven’t done anything because he has been probably gaining time by promising me this or that but at the end nothing yet, he has also try to intimidate me and has threatened me.

  17. My current partner and i have been together for 4 years and he is technically still married to his ex.
    Is she still entitled to claim his super ?

  18. Hi,
    I have a defined benefit pension overseas accumulated before my marriage (TTV approx $600K). I left the scheme before the marriage so no accumulation during the relationship. Super accumulated during 18 year marriage in this country by my ex is $230K and mine is $15k. He has x4 the income I now have and is 6 years my junior. I am 6 years from starting to receive my DB pension and still have 100% care of our 3 children post separation (1 with lifelong disabilities). How would the courts consider the split given when they were accumulated, current values and future needs?

  19. Hi, My partner and I established our relationship after I had retired, and he is still working. I had substantial superannuation and a property prior to the relationship, and we only lived together for a short period. Can he claim on my super if he has made nil financial contribution and we have kept finances separate?
    Thanks.

    1. Hi, it really depends on the duration of the relationship, but if it is a short relationship less than 5 years and the finances were kept separately, it would be hard to make a substantial claim on that superannuation.

  20. Is my ex able to have a second grab of my superannuation? We separated 15 years ago, and consent orders inc. super were finalised the following year (divorce officially finalised 2016). I pay a significant amount in child support, which is due to conclude in September. Worried they’ll be looking for a way to keep getting money out of me. I know it seems very unlikely that they can.. but if they can, they absolutely will. Need some peace of mind that my super is safe!

  21. My ex husband and I were married 10 years and have 3 children together. When we separated we had no assets and there was no settlement in the divorce. Our 3 children all have special needs and I have been the sole carer for the last 16 years, I have been unable to work in that time due to their care needs. They are all still in my care and require on going care for life. I currently have financial hardship and would like to know if I can apply to access his superannuation as I have been unable to accrue my own due to my inability to work whilst caring for our children.

    1. Hi, in cricumstances when the separation was a considerable time ago, it is unlikely that the family court would allow you to open a case like this due to the limitation period.

  22. Is it possible for an Ex Wife (Still not Divorced and were together approx 17 years) who signed approved Court Consent Orders (15 years ago) to “forego super and any future” make a claim for super now after recent death of the ex husband ?
    Would the Orders override not being divorced?

  23. Hello, If my former wife and I have an arrangement of our children 50/50 (week on week off) is she still entitled to claim half my super?
    In addition I have paid her out with $485k for her to buy house and start again

  24. Hi. Why on earth would your spouse be entitled to any amount of super prior to meeting them. They had zero contribution to anything in that time. Wouldn’t it be based on time spent together and factoring in children etc?

  25. Hi, my divorce end up 1year and 4weeks. My x husband told me that he doesn’t want to give me any cents of our property settlement including superannuation..he said as well that it’s my responsibility to work it out how to claim our property settlement. He promised me he will settled with me after 1year of divorce..I’m trying contact him he blocked me..I can’t contact him anymore.

    1. It’s important to remember that property settlement and superannuation splitting are legal rights under Australian family law, and you might have entitlements regardless of your ex-husband’s claims.

      It is advised that you contact an experienced family lawyer to receive legal advice and guidance on your rights and potential steps and outcomes in your situation.

  26. Hi, I separated from my husband over 20 years ago but never divorced. He recently passed away and he was in a defacto relationship for over 10 years (no children). We had one child together. Am I entitled to any part of the superannuation for the time we were together which was 10 years and is my adult child entitled to a portion of the super?

    1. Hi, the financial entitlements for you and your child would depend on whether you have been made beneficiaries to his superannuation fund and/or will. It is the responsibility of the superannuation fund trustee to determine the distribution of the superannuation. It would be beneficial to seek legal advice to understand your position clearly and to assist with any claims you may wish to make.

  27. We are married for 10 years. We separated 4 months ago. I work 3 years and 4 months during our marital relationship. We don’t have kids. Am I entitled to half of his super? Can I make a claim now?

    1. Hi, your entitlements to your ex-spouse’s financial assets including his superannuation would depend on various factors including the length of the marriage, financial and non-financial contributions made during the relationship and future needs. It is difficult to assess whether you would have a claim to his superannuation without further particulars regarding your situation. We would recommend contacting an experienced family lawyer to receive comprehensive advice on your legal rights, next steps and likely outcomes.

  28. Not married. No children. Lived together for 20 years but only intimately for first few. Have supported them financially but lived completely separate lives for years and haven’t shared a room or finances or lived as a couple. How would courts determine if defacto / if or what each entitled to if have lived under the same roof but not as a couple if parties make opposite claims of situation? What sort of evidence of a relationship taking place within the claimable period would have to be demonstrated for a claim to be reasonably made?

    1. Hi, although there is no specific timeframe stipulated by the law, de facto relationships are generally considered when individuals live together on a domestic basis as a couple for at least two years. The court will assess financial and non-financial contributions, the length of the relationship, and other relevant factors to determine any claims. Supporting evidence may include documented communication between the two of you, financial records and testimony from witnesses regarding the nature of cohabitation. Given the complexities of long-term cohabitation, it is advisable to seek guidance from an experienced family lawyer to better understand entitlements in these circumstances.

  29. Hello, I have just come up to 12 months separation from my Ex Fiancé, I have been going through substantial financial hardship and have a huge debt since separation. We had no assets together, but I am wanting to know if I am eligible to claim some of his super? We were together for 12 years and have two children.

    Thanks

  30. Hi my partner was married for 15 years and now divorced can his ex wife claim his super which is now a DVA pension from him, he is retired veteren due to medical issues. Also what is she intitled to as they have no children but have 2 houses and vehicles between them both.
    Thank you

    1. After a divorce, your partner’s ex-wife may claim his superannuation within a year if they were married, or up to two years post-separation if in a de facto relationship. Superannuation, including ADF pensions, is generally treated as property to be divided during a divorce.

  31. Hi.
    I’ was in a de facto relationship for 15 years and have 2 children, I am wanting to know what the legal date of separation would be, Child Support indicates the 14/2/2023, is it from when we stopped living with each other and went our separate ways or is it when we legally settle? My partner believes she is entitled to everything since separation as well.

    1. Hi, in the context of family law and child support, the “date of separation” most often refers to the specific date on which one or both parties consider their marriage or de facto relationship to have ended rather than the date that legal proceedings were finalised.

  32. Separated 18 mth ago after 19yr Marriage. One kid 17yrs, both worked full time and have a mortgage (equal contribution ) He has $800k and me $90k in super. Wondering roughly what percentage I would be entitled too (even though I would be happy with the bare minimum). Divorce inprogress. Both early 50’s

  33. Hi, my partner is going through a property settlement with his ex (defacto) who did not contribute financially to their relationship of 25 years. We are to be married in a few weeks. There is a 16 year old child who is in our full time care. I am sure she can claim for their house as it is in both their names but what about his super once he is married. She ended the relationship some time ago and they slept in separate rooms (as she was having an affair he was unaware of) for two years before she decided to make a claim and has thrown a time line on the end of the relationship to suit the two year time limit . He has a considerable amount in his super and hopes it will be protected by our marriage.

    1. Hi Sara, getting married does not automatically protect superannuation from being divided in a property settlement with a previous de facto partner. Particularly considering the length of their relationship, she might be entitled to a claim. Superannuation, alike other aspects of the property pool, will be divided based on contributions, both financial and non-financial, made throughout their relationship. It’s wise for your partner to consult with a lawyer to better understand his rights and navigate this process.

  34. Hi, my husband has decided to end our marriage after 20 years, we are on friendly terms. He is giving me all the house contents and most of the sale of the house, and he will only take $50,000 to $100,000, as he doesn’t want to leave me destitute, I might come out with about $500,000 to hopefully buy myself a house. Through our marriage, I have been a stay-at-home mum raising our children. He is on a substantial wage of $130,000 a year and I will be on $20,000 a year (jobseeker). I have very little super maybe $1,000. His super is a defined benefit and he said it wasn’t worth me going for his super as I am getting most from the sale of the house. I just want to know if I should still go for his super or leave it as he is giving me most of the money in the sale of the house? I certainly don’t want to seem greedy but he is the one ending our marriage and he will be on $3000 a fortnight and I will be living on $840 a fortnight. Thank you for your time.

    1. Hi Bonnie, taking into account the duration of your marriage and the substantial differences in your financial circumstances post-separation, it’s important to consider all aspects of your financial settlement including superannuation carefully. It would be advisable to consult with a family law attorney who can provide detailed advice tailored to your situation.

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