Superannuation in Consent Orders

Superannuation in Consent Orders is considered a different type of property. It lets separating couples value their superannuation and split superannuation payments, it is not compulsory to split your superannuation.

Splitting your superannuation fund can not be converted to cash. It can only be transferred between superannuation funds unless you have reached the age of retirement.

Options for splitting Superannuation in Consent Orders

Seek Consent Orders to split superannuation
A formal written agreement requires that both you and your partner instruct a lawyer, who must sign a certificate, stating that independent legal advice about the agreement has been given this is known as a Binding Financial Agreement. This is in our opinion is not a cost effective solution.
If you cannot reach an agreement with your former partner, seek a court order to split superannuation in this case Consent Orders are not a cost effect option.

How do I split my Superannuation in Consent Orders

Obtain valuation information

You need to understand the value of the superannuation entitlement. Most funds now can provide an valuation via their online portal. We suggest calling them for a current statement. If they are unable to do this you should provide the following forms to the trustee of the superannuation fund.

The Superannuation Information Kit provides the information and the forms you need, including:

Form 6 Declaration
Superannuation Information Request Form, and the
Superannuation Information Form

The superannuation fund may charge a fee for providing the information, and this is paid to them when you send the forms.

Decide the method of splitting

Either enter into a formal written agreement or obtain a court order.

You get court orders about the division of property in two ways:

If you and your partner have reached an agreement, then Kate Austin Family Law will create an Application for Consent Orders and a minute of Order which will be filed in the Family Court The orders will then be made in chambers without either of you attending court.

Even if you have started proceedings, you can reach an agreement at any stage and once the orders recording the agreement are made you do not need to attend court further. Kate Austin will draft your agreement and file it with the Court on your behalf.

Some FAQ on Superannuation in Family Law

Why have a superannuation split?
How does a superannuation split work?
Obtaining a Superannuation Splitting Order

Superannuation in Consent Orders – What is super splitting?

When couples who own property together separate, they look to divide all of the assets and liabilities of their relationship between them in what is commonly known as a ‘property settlement’. Superannuation is not, strictly speaking, an asset, as it is not generally currently available for division between the parties, and as such, it is known as a ‘financial resource’.

Historically, superannuation was not able to be divided between parties the same way as other assets, like cars, furniture and bank accounts. However, legislative changes in 2002 (for married couples) and 2009 (for de facto couples) mean that separating couples are now able to arrange a division of one party’s superannuation entitlements as part of their overall property settlement. Dividing one party’s superannuation so that the other party receives a portion of it is known as a ‘superannuation split’.

Your Guide to Everything You Should Know About Consent Orders

Initial discussion about your agreement.
Continual updates on the progress of your agreement.
Access to our office to answer questions.
Creation and submission of your application to the Family Court.
Discussion with Rachel Stubbs (Accredited Specialist in Family Law) about your agreement.
Custom drafting your agreement by Rachel Stubbs.
Suggested notations on your orders.

Draft consent orders for your approval in 48 hours.
Changes to your orders made within 24 hours.
Assistance in the signing process for your application.
Online submission of your application to the Family Court.
Answering any requisitions (if required) to the Family Court.
Posting original orders (Registered Post) to you on completion.
A certified copy of the orders emailed to you.
Guaranteed fixed fee as per the initial quote.

Talk to a Family Lawyer Who Understands Your Situation

Calling a family lawyer can be difficult. Clients reach out every week with the painful situations they’re going through. If you’re facing something like this, and need help, don’t hesitate to get in touch or schedule an appointment where we can talk things over.

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Associations of Which We’re a Part

As experienced family lawyers, we’re also a member of Australia’s leading law associations.

Family law section law council of Australia - Kate Austin Family Lawyers

Family Law Practitioners Association - Kate Austin Family Law

How Does a Superannuation Split Work?

It is important to note that when one party’s superannuation is split, in most instances the other person does not become entitled to take the portion of the first party’s superannuation that they are to receive in the form of cash. The amount that is to be split in their favour goes into their own nominated fund, and is not therefore available until they reach retirement age.

The Family Court is able to make an order, as part of an overall property settlement, splitting one party’s superannuation entitlements. That order is then legally binding on the trustee of the superannuation fund, who has to comply with it.

Superannuation splits can be based on a set sum or lump sum figure, say, that the sum of $100,000 be taken from a party’s entitlements, to be given to the other party, or they can be based on a percentage of what is available in a fund, i.e. that 50% of the party’s current entitlements go to the other party It is a requirement before court orders are made, whether by agreement or otherwise, and before a binding financial agreement is entered into, that both parties disclose their respective financial positions to one another.

This means that in many instances, a precise figure is used for the superannuation split, rather than a percentage, having regard to what each party currently has in terms of superannuation entitlements. A percentage figure might be more useful in particular circumstances, say, with a binding financial agreement that addresses a superannuation split that might occur in the event of a future separation.

Superannuation splitting orders can be obtained by both married and de facto couples.

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If you’re looking for a firm figure on what a Consent Order will cost, you can find it by clicking the button below. You’ll be able to calculate the cost based on your circumstances and get a quote you can trust.

If you have questions or are close to reaching an agreement, we’d be happy to give you advice on how to take those last few steps.

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Obtaining a Superannuation Splitting Order

There are a number of things that need to be done in order to obtain a superannuation splitting order. Ideally, you and your former partner will have reached an agreement about your overall property settlement, which agreement will include provision for a superannuation split.

It is, however, necessary to obtain the approval and consent of the Trustee of the superannuation fund from which a split is being sought before approaching the court to have orders made for a super split. If the trustee’s approval is not obtained, then the Family Court will not and cannot make the Orders that you are seeking.

The reason for this is that, ordinarily, the Family Court can only make orders for a property settlement that binds the parties to the marriage or de facto relationship. A super fund obviously doesn’t fall into that category. Usually, if you want the court to make orders that bind a third party, you need to join that third party to the proceedings.

This isn’t a practical solution for obtaining a superannuation split, and so the method by which this problem is alleviated is to obtain the consent of the trustee of the super fund to the proposed orders before approaching the court to have the orders made.

It is also very important that the wording that is used for the proposed superannuation split is very specific. Many superannuation funds are very particular about how the orders are drafted and will not provide their consent to a proposed division of superannuation until the wording they require is set out exactly the way they want it set out.

It is a matter, therefore, of approaching the Trustee of the superannuation fund with the draft orders and seeking their approval in relation to them.

The Trustee has 28 days to respond to any request for a proposed division of superannuation.

There are some circumstances in which the Trustee will not give approval, however, your solicitor will be able to identify those scenarios for you and would not ordinarily suggest a superannuation split if the Trustee was not likely to approve it.

Once the approval has been obtained, it is then a matter of approaching the Court to have orders made in accordance with the agreement reached between the parties, including the superannuation splitting orders.

Once made, the Trustee is required to be served with a certified sealed copy of the orders at which time they will take steps to implement the orders that have been made.

A few other things to note…

Superannuation splitting orders can be made by separating couples, whether they were married or in a de facto relationship.

Superannuation splitting orders can also be made as part of consent orders made by the Family Court, or as part of a binding financial agreement. Parties can enter into a binding financial agreement prior to or during a de facto relationship or marriage, or after the breakdown of a de facto relationship or marriage. This means that you can in fact agree to a superannuation split as part of a binding financial agreement entered into prior to or during a de facto relationship or marriage.

If you’re looking for more information about superannuation splits, you can go to our Superannuation Splits FAQs page for more information. If you would like an instant superannuation split fixed fee quote, we’ve got a page for that as well.

If this has given you a reason to rethink your decision not to formalise your agreement, take the next step and give us a call. We can talk you through the process, confirm the price, and get you started. If you’d like more information about our fixed fees, just click on the button below.

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Why Have a Superannuation Split?

In many relationships, one party has taken considerable periods of time out of the workforce whilst the other has been the primary income earner. On separation, it is then often the case that one party has accumulated significantly more superannuation than the other by virtue of theM having been continuously employed.

In order to see a property settlement that is fair to both parties, it is often the case that there will be a division of the superannuation entitlements of the person who has the greater amount of super, and this is referred to as a ‘superannuation split’.