Superannuation in Consent Orders
Australia’s leading fixed-fee consent Orders Solution for amicable Property Settlements.
No hidden fees, no drawn-out process, just fast, affordable results for your Consent Orders, servicing all of Australia.
What Do You Need Help With?
- We do not try to change your agreement. We are a neutral party happy to with both parties for a quick resolution.
- Fast. Our Consent Orders will be prepared in 24Hrs at a fixed fee.
- Professional. We are Accredited Specialists in family law (NSW and QLD).
- Easy to deal with. We offer you a fully remote service with Rachel and Brendan.
- Comprehensive. We complete every step of the process – Application for Consent Orders and Minute of Order.
Superannuation in Consent Orders
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What is a superannuation Splitting Order
A superannuation split allows separating couples to divide one party’s superannuation after a relationship breakdown. Sometimes, one party has accumulated significantly more superannuation than the other, typically because one has taken a long break from the workforce to raise children. A superannuation split can help equalise their superannuation entitlements, so they both end up with similar amounts. Alternatively, it can simply serve as an adjustment based on the amount the parties agree upon.
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Does Superannuation have to Be a 50/50 Split?
No. There are no rules regarding how much the superannuation split equates to. Sometimes it is a monetary figure, say $30,000, and sometimes a percentage split is used. You may even choose not to split; however, remember that the value of superannuation will be included in the global value of the asset pool.
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Can I Receive the Superannuation Split as Cash?
Unless you are otherwise eligible to receive your superannuation entitlements, such as if you have retired or can access your superannuation on hardship grounds, any superannuation split results in the transfer of funds from one party’s superannuation fund to the other party’s superannuation fund. It is not cashable in that sense.
For this reason, it is uncommon for one party to take the superannuation assets after a separation while the other takes the non-superannuation assets. Most people prefer to share both what is currently available and accessible rather than waiting until a future date, such as retirement, to receive their share of the property settlement.
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Do you have to spilt superannuation?
No. There is no requirement to split superannuation. When the Family Court considers an agreement, it assesses its "just and equitable" status as a whole, not its elements.
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Can I adjust something else instead of superannuation?
Yes, you can. Sometimes, clients pay extra on the agreed transfer amount for a property transfer instead of making a payment from their Superannuation.
For example, if the agreement is that one party will transfer $50,000 to the other party, they could say that rather than execute a superannuation splitting order, an additional payment could be made in cash from a property transfer.
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Superannuation Splitting is Not Mandatory
While superannuation is treated as property, splitting it is not compulsory. Couples can agree on other ways of dividing their overall asset pool.
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Valuation of Superannuation:
To include superannuation in consent orders, its value needs to be determined. This usually involves obtaining the latest member statement from the superannuation fund. The Family Law (Superannuation) Regulations 2025 provide methods for calculating the value.
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Methods of Splitting:
Consent orders can specify the split in two main ways:
- Base Amount: A specific dollar amount is to be transferred from one party's superannuation to the other.
- Percentage: A specified percentage of one party's superannuation interest is to be transferred.
Further information On Superannuation
5 questions about Superannuation and Consent Orders
How to get a superannuation split in Consent Orders
5 questions about Superannuation and Consent Orders
How to get a superannuation split with Consent Orders.
Accumulation Funds:
Accumulation superannuation is the most common type of super fund in Australia. In this type of fund, the value of your super “accumulates” over your working life. The total of determines your final retirement benefit:
- Contributions: Money paid into your account by your employer (the Superannuation Guarantee), and any additional voluntary contributions you make.
- Investment Returns: The profits or losses generated by your fund’s investments (e.g., in shares, property, and other assets).
- Fees and Costs: The amount deducted from your account for administration, investment management, and insurance premiums.
Unlike a defined benefit scheme, where your retirement income is calculated by a pre-determined formula, with an accumulation fund, you bear the investment risk. If your investments perform well, your balance grows. If they perform poorly, your balance can decrease. This type of fund provides you with more flexibility and control over your investment choices.
Largest Superannuation Funds in Australia
- AustralianSuper:
- Australian Retirement Trust (ART):
- Aware Super
- UniSuper:
- Hostplus:
These top funds, along with others like HESTA and REST, are predominantly “profit-for-member” industry funds, meaning they return any profits to members rather than to shareholders. The trend of consolidation is expected to continue, leading to further growth in the size and market share of these large funds.
Defined benifit Superannuation
Defined benefit superannuation is a type of retirement fund where your final retirement benefit is calculated using a set formula, rather than by the balance of your account. The formula typically considers:
- Your salary at a specific point in time (often your final or average salary over a period).
- Your length of service with the employer.
- A pre-defined accrual rate or a multiplier.
The key characteristic of a defined benefit scheme is that the investment risk is borne by the employer or the fund, not the member. This means your retirement payout is largely insulated from the movements of investment markets. The employer is obligated to ensure the fund has enough assets to meet its future liabilities to members.
These schemes were typical in the public sector and for large, established companies, but are now almost entirely closed to new members. They have been replaced by accumulation schemes, where the member bears the investment risk.
Most significant Defined Benefit Funds in Australia
While most large super funds in Australia are primarily accumulation funds, several of the most significant funds still manage a substantial amount of defined benefit assets on behalf of their legacy members. These are typically public sector and military schemes.
The largest funds with a significant defined benefit component include:
- Commonwealth Superannuation Corporation (CSC): This is the largest administrator of defined benefit schemes in Australia.
- UniSuper:
- Australian Retirement Trust (ART)
- Aware Super
Everything to know about Accumulation Interest and Superannuation
Everything to know about defined benifit and Superannuation
Process for applying for a Superannuation Splitting Order with Consent Orders
To include superannuation in Consent Orders following separation or divorce, Kate Austin Family Lawyers should take the following steps:
- Obtain Superannuation Valuation Information:
- Complete a Form 6 Declaration and a Superannuation Information Request Form to gather accurate and up-to-date valuation information for the superannuation interests held by both parties. This is only required to be completed for a Defined Benefit Fund.
- Reach an Agreement:
- The separating parties must negotiate and mutually agree on how their superannuation will be split. This can be done directly or with the help of legal or financial mediators.
- Draft the Consent Orders:
- The agreed-upon terms for superannuation splitting should be drafted into the Consent Orders. This requires precise legal language referencing the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2025. The clause should clearly identify
- The Trustee and the superannuation fund.
- The member’s details.
- The amount or percentage to be split.
- The operative time for compliance is typically within four business days after service on the Trustee.
- The agreed-upon terms for superannuation splitting should be drafted into the Consent Orders. This requires precise legal language referencing the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2025. The clause should clearly identify
- Ensure Procedural Fairness:
- Firstly, we will provide procedural fairness to the superannuation fund trustee by serving a copy of the proposed Consent Orders at least 28 days before filing them with the court. This allows the Trustee to review the orders and raise any objections.
- File the Application for Consent Orders:
- Once the agreement is reached and procedural fairness has been granted, all documents, including the Application for Consent Orders, the proposed orders and proof of superannuation value, should be filed with the relevant court.
- Court Review and Approval:
- The court will review the documents to ensure fairness and compliance with legal standards. If satisfied, the court will make the orders without a hearing.
- Serve the Sealed Orders on the Trustee:
- Kate Austin will serve a sealed copy of the Consent Orders on the superannuation fund trustee, who is legally obligated to implement the superannuation split per the orders.
- Obtain Superannuation Valuation Information:
Process for applying for a Superannuation Splitting Order with Consent Orders
What are the steps to complete your Consent Orders with a Superannuation split
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Talk to Us
Before starting your matter, we need to ensure we can deliver the agreement you and your former partner have designed. If we can't deliver what you want, we will tell you, and if you have paid us money, we will refund it.
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Draft your Agreement
We provide you with intake forms to complete; They are interactive and quite simple to use. If you have questions, you can call, text or email us. We will provide you with a dedicated mobile number. We will complete the Application for Consent Orders and the minute of Order in 24Hrs
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Sign Your agreement
Once you are happy with the documents, we will provide you with an electronic version to sign online. Once signed, we will file your Property Settlement documents on our portal and look after the Family Court if they have any questions.
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Once Approved by the Family Court
We will advise you once your property Settlement is approved and send it to you by email. Additional copies are provided to your Bank, Broker, or Conveyancer if required. We can Provide electronic certified documents
Relevent Legislation
* Section 90MA: Object of this Part: States the purpose of this Part, which is to allow certain payments from superannuation to be allocated between parties to a marriage, either by agreement or court order.
* Section 90MB: This Part overrides other laws, trust deeds etc.: Clarifies that this Part takes precedence over other Commonwealth, State, or Territory laws and trust deeds regarding superannuation splitting.
* Section 90MC: Extended meaning of matrimonial cause: Broadens the definition of “matrimonial cause” to include proceedings related to superannuation interests.
* Section 90MD: Act binds all trustees: Confirms that the provisions of this Part are binding on all superannuation fund trustees, including those of self-managed superannuation funds and public sector schemes.
* Section 90MDA: Commonwealth etc. as trustee: Addresses situations where the Commonwealth, a State, or a Territory is a trustee.
* Section 90ME: Application of this Part to certain void marriages: Extends the application of this Part to certain void marriages.
* Section 90MF: Part does not apply to certain annuities: Specifies that this Part does not apply to certain types of annuities.
Section 90XD: Definitions: Provides definitions for key terms used throughout Part VIIIB, such as “eligible superannuation plan,” “member spouse,” “non-member spouse,” “splittable payment,” “payment split,” “payment flag,” and “superannuation agreement.”
* Section 90XE: Meaning of splittable payment: Defines what constitutes a “splittable payment” from a superannuation interest.
* Section 90XF: Meaning of reversionary interest: Defines “reversionary interest” and clarifies that it is not considered a superannuation interest for the purposes of this Part.
* Section 90xg: Meaning of unsplittable interest: Defines “unsplittable interest,” which is a certain type of superannuation interest that cannot be split.
* Section 90XH: Superannuation agreement to be included in financial agreement if about a marriage: Requires that agreements about superannuation interests between parties to a marriage must be included in a Part VIIIA financial agreement to be valid under this Part.
* Section 90XI: Service of superannuation agreement: Specifies the requirements for serving a superannuation agreement on the trustee of the eligible superannuation plan.
* Section 90XJ: Payment split under superannuation agreement or flag lifting agreement: Outlines how a payment split occurs under a superannuation agreement or a “flag lifting agreement” (an agreement to remove a flag placed on a superannuation interest).
* Section 90XK: Effect of superannuation agreement on trustee: Details the obligations and protections of the trustee when a superannuation agreement is in force.
* Section 90XL: Splitting order: Empowers the Family Court to make orders for the splitting of superannuation interests.
* Section 90XM: Application for splitting order: Specifies who can apply for a splitting order.
* Section 90XN: Notice of application for splitting order: Requires that notice of an application for a splitting order be given to the trustee of the superannuation fund.
* Section 90XO: Procedural fairness for trustee: Ensures that the trustee is given an opportunity to be heard by the Court before a splitting order is made.
* Section 90XP: Separation declaration: Allows a spouse to make a declaration that they have separated from their partner, which can be relevant for certain superannuation splitting orders.
* Section 90XQ: Time limit for making splitting order: Sets out time limits within which a splitting order can be made.
* Section 90XR: Effect of splitting order: Explains the consequences of a splitting order on the superannuation interest and the trustee.
* Section 90XS: How payment split under splitting order is to be effected: Details how a payment split is implemented following a splitting order.
* Section 90XT: Entitlement of non-member spouse to payment under splitting order: Specifies the non-member spouse’s entitlement to payment under a splitting order.
* Section 90XU: Flagging order: Allows the Family Court to make an order “flagging” a superannuation interest, which prevents certain actions from being taken concerning the interest until a later event occurs (e.g., retirement or a further court order).
* Section 90XV: Application for flagging order: Specifies who can apply for a flagging order.
* Section 90XW: Notice of application for flagging order: Requires notice to be given to the trustee.
* Section 90XX: Procedural fairness for trustee: Ensures the trustee has an opportunity to be heard.
* Section 90XY: Time limit for making flagging order: Sets time limits for making a flagging order.
* Section 90XZ: Effect of flagging order: Explains the consequences of a flagging order on the superannuation interest and the trustee.
* Section 90Y: Operation of flagging order: Details how a flagging order operates.
* Section 90YA: Lifting of flag by agreement: Allows parties to agree to lift a flag.
* Section 90YB: Application for order lifting flag: Specifies who can apply for an order to lift a flag.
* Section 90YC: Order lifting flag: Empowers the Court to make an order lifting a flag.
* Section 90YD: Effect of order lifting flag: Explains the consequences of an order lifting a flag.
* Section 90YE: Information to be given to eligible person on request: Requires trustees to provide certain information about a superannuation interest to an “eligible person” (which includes a spouse or former spouse).
* Section 90YF: Regulations may prescribe forms etc.: Allows regulations to prescribe forms for requesting and providing information.
* Section 90YG: Death of member spouse before payment split completed: Addresses the situation where the member spouse dies before a payment split is finalized.
* Section 90YH: Death of non-member spouse before payment split completed: Addresses the situation where the non-member spouse dies before a payment split is finalized.
* Section 90YI: Liability of trustee: Provides some protection to trustees acting in accordance with this Part.
* Section 90YJ: Superannuation interest that is a pension: Deals with superannuation interests that are already in pension phase.
* Section 90YK: Regulations: Allows for regulations to be made under this Part.
* Section 90YL: Part VIIIB superannuation agreements that become superannuation agreements for the purposes of this Part: Addresses the transition of certain agreements into superannuation agreements under this Part.
About Kate Austin Family Lawyers
We work with amicable parties. – we don’t represent either of you.
We are a neutral third party; we do not represent either party. We do not offer legal advice but rather procedural advice. It is up to each party to seek legal advice if they wish to do so. If there is any uncertainty, we encourage parties to seek independent advice.
Our speciality is amicable separations.
Consent orders do not require parties to obtain independent legal advice. Clients are free to do so again.
We work with amicable parties. – We don’t represent either of you.
Why – amicable parties also need to complete consent orders, and they don’t need independent lawyers.
Also, we prefer this type of work. Helping people get to a solution quickly and easily is rewarding. While conflict work is more profitable, it’s extremely taxing.
Things to know before you call Kate Austin Family Law for Consent Orders
- We have a strict non-conflict policy – We are family lawyers who won’t fight.
- Our job is to work with your agreement
We have made a deliberate choice to avoid involvement in disputes between parties. With a quarter-century of experience in Family Law, we have contributed enough to resolving conflicts. If you don’t have an amicable relationship with your former partner, our firm may not be the right fit for you.
When you contact us, we will respond that we are “too old and too tired to fight.” Not necessarily too old, but we prefer to allocate our energy to more constructive endeavours than combat.
We do not meddle in your Property Settlement agreement.
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Our clients have agreed amicably. For some, this happens quickly, for others, it doesn’t. We respect the effort that you have taken to finalise your situation. So long as we believe that your “agreement is fair” and as we act as a neutral party, we will never advise one party to change the agreement. We do not offer independent legal advice.
In conjunction with a mediation session, our fixed fee for Property Settlement in Consent Orders provide excellent value for your family law matters, and may be one of the most cost-effective and timely ways to resolve your family law matters without having to go to court.
We only do Consent Orders.
Kate Austin only works with clients to draft consent orders. We do not draft Binding Financial Agreements or prenuptial agreements, or offer other services.
We are a national service.
As a service that operates nationally, in fact, the world, so long as their matter can be determined in the Australian Family Court. Family law is a national law governing all Australians equally. The same rules apply in all states ( with some exceptions in Western Australia). A registrar within any state (except Western Australia) can determine your consent orders.
Fixed Fee Sevice .
For simplicity, we only charge fixed fees, avoiding confusion and eliminating a potential dispute over fees. We advise our fees in advance and provide you with a trust account request for that amount. That money will remain in your trust account until the matter is finalised. Then we will pay your account usually a week or two later. Fixed fees avoid potential conflicts.
We will only accept your matter if we believe it’s “just and equitable”.
We complete quite a few hundred matters each year. We are proud that we have never had a matter ejected by the Family Court. We can never guarantee what the court will decide; however, after 25 years of Family Law, we can select matters that the Family Court will approve.
Associations of Which We’re Part
