Can I stop my ex-partner from withdrawing their superannuation before our property settlement is finalised?

The situation

I am currently going through a separation in Melbourne, Victoria, and things are getting quite difficult. My ex-partner and I separated about six months ago, in early January, and we have been trying to work through our property division privately. However, I have recently discovered that they have a substantial superannuation balance of approximately $185,000 held in a private fund. I am extremely worried because they have started talking about retiring early or perhaps even accessing some of that money to fund a new lifestyle elsewhere. I am terrified that if they manage to withdraw or move those funds before we have a formal agreement or a court order in place, there won't be anything left for me to claim my fair share of. I have already tried to discuss this calmly with them, but they are being very defensive and refuse to commit to any formal arrangement regarding the super. I need to know if there is any way to legally freeze that superannuation account or force the fund manager to notify both of us before any money is actually paid out, so I don't get left with nothing once the final settlement is eventually reached.

Detailed Analysis

Under the Family Law Act 1975, you have a legal mechanism to protect superannuation assets during a separation. Because you are worried about your ex-partner accessing their $185,000 superannuation balance to fund a new lifestyle, you can seek what is known as a flagging order^[1].

A flagging order is a court order that puts a temporary 'stop' on certain types of payments from a superannuation fund. Specifically, the court may issue an order "directing the trustee not to make any splittable payment in respect of the interest without the leave of the court"^[1]. This means the fund manager (the trustee) is legally forbidden from releasing the money unless the court gives them express permission.

Additionally, the order can include a requirement "requiring the trustee to notify the member spouse and the non‑member spouse, within a period specified in the order, of the next occasion when a splittable payment becomes payable"^[1]. This would ensure you are not left in the dark if your ex-partner attempts to trigger a payment or retirement withdrawal.

When deciding whether to grant this, the court will look at relevant factors, including "the likelihood that a splittable payment will soon become payable in respect of the superannuation interest"^[1]. In your case, your ex-partner's recent comments about retiring early or moving funds would be highly relevant evidence for the court to consider.

It is important to note that while a flagging order protects the funds, it does not automatically grant you a share of the money; it simply preserves the status quo until your final property settlement is reached. Furthermore, the law provides that a court cannot make certain orders if a "payment flag is operating on the superannuation interest"^[2], meaning once the flag is in place, it governs how the super is handled during the proceedings.

Statutory Citations

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