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
Australian Family Law and Superannuation in Consent Orders
- The evolution in the treatment of superannuation in Consent Orders after relationship breakdown
Superannuation now treated as significant property for division - Legislative amendments in 2002 (married couples) and 2009 (de facto couples)
- Recognition of superannuation as key component of marital wealth
Flexibility in Division of Superannuation
- Splitting of superannuation isn’t automatically mandated by law
- The decision to split remains discretionary for separating couples
- Couples can offset superannuation value against other assets
- Mutual agreements may allow superannuation to remain untouched
- Individual factors considered in negotiations: age, income, existing assets, financial security
Legal Framework
- Governed by Family Law Act 1975 (Cth) and Family Law (Superannuation) Regulations 2025 (Cth)
- Guidelines on valuation, payment splits, and trustee obligations
- Ensures fair, transparent, and legally sound division of superannuation assets
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Accumulation Interest Superannuation
Accumulation Funds:
- Description This is the most common type of superannuation fund. The value grows based on contributions made and the investment returns earned on those contributions.
- Splitting Process In the case of splitting, the agreed amount or percentage is typically transferred to a new account set up for the non-member spouse or rolled over into another superannuation fund. This Process is often straightforward due to the transparent nature of the account balance.
Defined Benefit Superannuation
Defined Benefit Funds:
- Description: These funds promise a specific retirement income based on factors such as the years of service and the member’s final salary.
- Splitting Process Valuing interests in defined benefit funds is more complex and may require expert actuarial valuations. Splitting can occur through a base amount or a percentage of future benefits. If the member is already receiving payments, the non-member spouse may receive a pension or lump sum, depending on the rules of the particular fund.
These differences affect how each type of fund is treated during property settlements, hence necessitating a tailored approach for each situation.
These differences affect how each type of fund is treated during property settlements.
Superannuation in Consent Orders - All You Need to Know
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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 looks at an agreement, it assesses its " just and equitable" status as a total valuation, not the agreement's 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.
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:
Importance of good advice.
Obtaining legal guidance from a Family Lawyer and financial advice from a financial advisor when upo are splitting split in Consent Orders is significant for several reasons:
Complexity of Regulations: The splitting of superannuation involves navigating complex legal frameworks established by the Family Law Act 1975 and the Family Law (Superannuation) Regulations 2025. Expert advice ensures compliance with these regulations and understanding of rights and obligations.
Understanding Superannuation Types: Different types of superannuation funds (e.g., accumulation vs. defined benefit) have varying implications for splitting. Consultants can provide insights into these distinctions and guide parties on the best approach for their specific situation.
Valuation and Fairness: Expert advice can aid in obtaining accurate and up-to-date valuations of superannuation interests. This required as part of the duty to full financial disclosure requirements.
Tax Implications: Superannuation splitting can have tax consequences. Independent financial advisors can explain the immediate and future tax impact of the split, helping individuals understand how their long-term financial situation may be affected.
Tailored Financial Planning: After a split, individuals need to reassess their financial strategies. Tax and Investment advice assists in creating a comprehensive financial plan that factors in the changes brought about by the superannuation split, ensuring proper management of retirement savings and other assets.
Avoiding Mistakes: Engaging with legal and financial experts reduces the risk of errors in the Consent Orders.
Overall, independent legal and financial advice is crucial in safeguarding individuals’ rights and interests throughout the superannuation splitting process.
What are the steps to complete your Consent Orders with a Superannuation split
01
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.
02
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
03
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.
What is in a Property Settlement Consent Order?
We only do Consent Orders.
We only work with clients to draft consent orders. We do not dabble in anything else, and we do not engage in litigation matters. We do not draft Binding Financial Agreements or prenuptial agreements or offer other services.
We are a national service.
We assist clients all over Australia and, 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 Fees.
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”.
Our Firm completes 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.
What is the Kate Austin Property Settlement process?
Step 1. Talk to us. We work to help people. We need to understand if we can help you, and you need to be comfortable working with us. If we think you can help, we will say so. If not, we may be able to provide you with some suggestions.
Step 2. – We will send you our intake forms and fee disclosure – Talk with your former partner and make sure everyone is comfortable.
Step 3. – Complete the intake forms – we provide these for you. They are online and a question answer format.
Step 4 – We draft your agreement in 24hrs and make changes in a further 24hrs
Final Step—We will send you your agreement to sign electronically using codes on your mobile. Once you have signed, we will submit it to the Family Court. The Family court should approve your agreement within 4 weeks or less.
How long does it take a client to Submitting Intake forms?
Generally, it will take clients 30-40 minutes to collect all the required information for a property Settlement.
How long will Kate Austin Take to draft the agreement?
- We will take 24hrs to draft the agreement
Changes required?
We will have these completed in 24hrs.
Superannuation approval
Superannuation funds have 28 days to approve proposed orders.
The Family Court
- The Family Court has no set time; however, we keep a current metric on average times. 2023 and 24 have been running at an average of 4 weeks.
You may have an agreement that is based on selling a property.
Your property may have already been sold, and the funds are sitting in your conveyancer’s trust account.
In this case, the entitlements of each party would be outlined, and the sealed court orders would be provided to the conveyancer for distribution.
This may occur when only one party is on title.
- You may be seeking to transfer a property between parties. This, in most cases, will be exempt from a stamp duty charge, and depending on your state, may provide some additional benefits.
- Transfers can occur between the parties and, in some cases, to the children of the relationship.
- Orders will outline each party’s responsibilities in the transaction, the timeframe for its completion, and the steps that will be taken if one party fails to comply with the terms of the agreement.
- Payment may be applicable to balance the contribution of each party or perhaps the offset of a superannuation splitting order.
- Some parties, if they have multiple properties, take one each and perhaps a cash adjustment to allow for equity differences.
- Stamp duty exemptions can be explained further on a state-by-state basis in our post HERE
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