How to get a Superannuation splitting order from the Family Court 

The process of getting a Superannuation Splitting Order has two main pathways: applying for a consent order if you and your former partner agree on the split, or applying for a court order if you cannot reach an agreement.

Step 1: Obtain Information and Valuations

Before you can apply for an order, you need to know the value of the superannuation interest to be split.

• Request Information: Use the Superannuation Information Kit, which includes a Form 6 Declaration, available on the Federal Circuit and Family Court of Australia website. This form is used to formally request information from a superannuation fund about a member’s interest
• ATO Assistance: If you don’t know which fund your former partner has superannuation with, you or your legal representative can apply directly to the Court to request this information from the Australian Taxation Office (ATO). The ATO will provide details of your former partner’s super funds and their last reported balance.
• Valuation: Once you have the information, you may need a financial expert or an actuary to provide a formal valuation, particularly for complex “defined benefit” super interests. Superannuation funds do not provide these valuations themselves.
•  

Step 2:  How to get a Superannuation splitting order. Seek a Court Order

After valuing the superannuation, you must formalise how it will be divided.

• If you and your former partner agree (Consent Order):
  • Draft the Orders: Work with your lawyer to prepare a draft of the proposed superannuation splitting orders. The orders can specify a fixed dollar amount or a percentage of the superannuation to be split.
  • Provide Procedural Fairness: This is a mandatory legal requirement. You must serve a copy of the draft orders on the superannuation fund trustee at least 28 days before you file them with the Court. This gives the fund time to review the orders and raise any objections if they cannot be implemented.
  • File with the Court: Once the 28-day period has passed and the fund has responded (or you have not received a response), you can file your Application for Consent Orders with the Federal Circuit and Family Court of Australia. The Court will review the orders in chambers, and if they are considered fair, they can be made legally binding without a court hearing

• If you cannot agree (Court Order):
  • File an Application: You must file an application for financial orders with the Federal Circuit and Family Court of Australia. This initiates court proceedings to resolve the dispute, including the superannuation split.
  • Provide Procedural Fairness: Just as with consent orders, you must serve a copy of the application and proposed orders on the superannuation fund trustee. This must be done immediately after filing the documents with the court.
  • Court Hearing: If you cannot reach an agreement at any stage of the proceedings, the Court will hold a hearing to determine how the superannuation and other property will be split.
  •  

Step 3: Implement the Order

Once the Court has made a legally binding order, the final step is to put the split into effect.

• Serve the Final Order: Provide a certified copy of the sealed court order to the relevant superannuation fund trustee, along with any other required forms (such as a Non-Member Spouse Information form).
• Split the Superannuation: The superannuation fund will then implement the split by creating a new superannuation account for the non-member spouse or transferring the funds to an existing account. The new interest is subject to the same laws as any other superannuation and cannot usually be accessed until retirement age.

How to get a Superannuation splitting order is a formal process that must be followed precisely. 

If you have any questions about How to get a Superannuation splitting order, please feel free to contact our office for a confidential discussion.