3 Feb 2013 - Property 

Following separation people wish to make arrangement for property settlement and remember having heard somewhere that superannuation is now considered property for the purposes of family law property settlement.  Sometimes people wish to reach an agreement about splitting their superannuation interests but do not know how to go about doing this.  The purpose of this fact sheet is to provide you with some general advice about how the Family Courts deal with superannuation interests.

Superannuation splitting law

The superannuation splitting law treats superannuation as a different type of property to things like houses, cars and bank accounts. It lets separating couples value their superannuation and split superannuation entitlements, although this is not necessary for all people to do so. Each case is unique.

It is important to understand that splitting superannuation entitlements does not convert those interests into a cash asset – the entitlements are still subject to superannuation laws (for example, it is usually retained until retirement ages are reached).  In simple terms, if you wish to receive part of your partner superannuation this does not mean you can readily convert it into cash.  Only in very limited circumstances will a super fund allow you to do so, and only then, only a limited amount (known as “hardship grounds”).  You must check with your Journey family law solicitor first before thinking you can access any part of your partner’s super after property settlement.

Options for splitting superannuation

Separating couples may either:

    1. Enter into a formal written agreement to split superannuation

A formal written agreement requires that both you and your former partner instruct a lawyer who must sign a certificate stating that independent legal advice about the agreement has been given. Once this agreement is made, you do not need to go to court. The agreement is not registered in court and you must be careful that each of you retains a copy.

Journey family lawyers do not recommend that anyone enter into a “superannuation agreement” as there are many dangers and pitfalls involved in doing so. Ask your Journey family law solicitor about this if you require further advice.

  1. Seek consent orders to split superannuation (this our best recommendation), or
  2. Seek a court order to spilt superannuation (if you cannot reach an agreement with your former partner)

Even when an application is made to a court, it is possible to reach an agreement at any stage without the need for a court hearing, and we encourage you do to so.  Journey Family Lawyers has a high success rate and reaching settlement in property matters thereby avoiding costly trials. You should ask your Journey Family Law solicitor about these options.

What you need to do to split superannuation

Step 1: Obtain valuation information

You need to get information to value the superannuation interests of both of you. You should provide the following forms to the trustee of the superannuation fund (we will usually do this for you):

  1. Form 6 Declaration. This satisfies the trustee of the fund that you are entitled to get the information for this limited purpose, and
  2. Superannuation Information Request Form (accompanied by the appropriate Superannuation Information Form).

The superannuation fund may (and often does) charge a fee for providing this information, and this is paid when you send the forms. The Superannuation Information Kit provides the information and the forms you need. To obtain a copy of the Superannuation Information Kit go to or call 1300 352 000, or ask your Journey Family Law solicitor.

The information from the trustee may be enough to value the superannuation. However, the valuation of some superannuation interests can be complex. An expert may need to provide a further valuation.  This often occurs when one of you works in the public sector and is a member of a defined benefit scheme.  The valuation process for such schemes is often very expensive.  You should ask your Journey Family Law solicitor about valuing superannuation.

How superannuation is valued

There are different types of superannuation. The superannuation splitting legislation sets out methods for valuing most types of superannuation, but there are exceptions, including:

  1. Self-managed superannuation funds – they are generally valued with the assistance of an expert such as an accountant
  2. Where the Attorney-General has approved a fund using a different valuation method.

Step 2: Decide the method of splitting

You have the option of either entering into a formal written agreement or obtaining a court order (by consent).

Obtaining a court order (our preferred method)

People obtain court orders about the division of matrimonial property in two ways:

    1. By consent of the parties

If you and your former spouse have reached an agreement about property settlement (and superannuation), then a Form 11 Application for Consent Orders should be filed in the Family Court, accompanied by a  consent order (often referred to as “Minutes of Consent” or “Terms of Settlement”) recording the agreement. The orders can then be made in chambers (by a judge alone)  without either of you or your Journey Family Law solicitor attending court.

NB.  In some rare circumstances the Court will require further information from the parties.  Just because you have prepared Consent Orders and a Form 11 does not necessarily mean that it is the end of the matter.  A court will only make the Orders you seek if they are “just and equitable” and are enforceable by law.  The wording of superannuation splitting orders is complex and must meet strict legislative requirements.  If your orders are not worded correctly they will be rejected by the registry and you will find yourself having to seek the advice of a solicitor.  It is always wise to seek legal advice first, and is you wish to have super-splitting orders made, have your Journey Family Law solicitor prepare them for you to avoid delay and unexpected expense.

  1. As a result of a court hearing.

Even if you start 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, provided that the Court is satisfied that the orders you seek are “just and equitable”.

Either way, you need to file an Application with the Court.

To start a case in the Federal Magistrates Court we must prepare for you and file an Application, an Information Sheet and a Financial Statement. The other party will file a Response and a Financial Statement.

The information from the superannuation fund trustee will help us to complete the court forms. You must disclose all superannuation, even if you do not intend to split superannuation payments.

Informing the superannuation fund

If you are seeking court orders about superannuation, we must tell the superannuation fund trustee about the orders you are seeking.  We must ordinarily provide the Trustee with 28 days written notice of the orders we seek on your behalf.  The trustee must have an opportunity to attend the court hearing and object to the orders that you are seeking. This is called providing the trustee with ‘procedural fairness’.

Once the superannuation order is made, whether by consent or after a hearing, it is  important to provide a sealed copy of the order to the trustee immediately.

You should get legal advice from us before deciding what to do. Our team of solicitors can help you understand your legal rights and responsibilities, and explain how the law applies to your case. Our role is to help you reach an agreement with your former partner without going to court.  That is always our first preference, but in some cases, it is simply not possible for parties to agree and if that is the case, we will assist you to prepare your court case.


6 responses to “Superannuation”

  1. concerned mum says:

    my daughters husband walked out on her and her 2 very young children while she was pregnant with their 3rd. 4 months later he got another girl pregnant and began living with her a few months later. they had no real property only household goods that she brought to the marraige. there was psychological and emotional domestic violence and he coerced her into cosigning for a new car, that he pays for and has possession of. after he left she used the bomb he left her as trade in and borrowed for her own car to get the kids around. the only things she would like is that her name be taken off the loan and that she gets some super for the future as she is on centrelink and cannot work until the children are all at school and does not have money to study. what sort of super split is reasonable to ask for ? also would she be entitled to any spousal maintenence considering he has a moderate income,no assets, debts and another relationship and baby?

    • Journey Family Lawyers says:

      Hi concerned mum,

      Sorting out a car loan and a superannuation split are definitely part of property settlement. The court uses a 4 step process to determine what each party is entitled to so your daughter should get some advice about what the split is likely to be and have a look at the amount of super she might ask for.

      Spousal maintenance arises when one party cannot meet their own reasonable living expenses and the other party can afford to pay spousal maintenance. This is very individual to each situation and each persons financial circumstances. We would need to consider whether her ex Husband has the capacity to make any payments to her.

      If your daughter has not already applied for child support, she should certainly approach the Child Support Agency and consider her options there.

  2. Debbie says:

    I divorced from a military member in 2003. at the time he was on a TPI benefit and still is

    There was no property settlement, he left me to sell house and pay outstanding bills eg utiliies.

    I did not know about super splitting, married in 1979, he was the main wage earner for years of marriage

    I am now unemployed and wanting to know if I can access any of his super

    • Bryan says:

      Usually a court cannot hear an application for property orders at the end of 12 months after a divorce order becomes final.

      In rare circumstances the Court may allow permission for applications for property settlement and/or spousal maintenance to proceed the Court has to be satisfied that:

      (a) “hardship” will be caused to a party or a trial if permission not be granted; or

      (b) In relation to spousal maintenance that at the end of the period in which the proceedings could have been instituted the circumstances of the Applicant were such that the Applicant was such that the Application was not able to support himself or herself without an income tested pension allowance benefit.

      What does Hardship Mean?

      A loss of prospective property claim may be hardship. It must be shown that there is a “substantial detriment”. A mere loss of a right to litigate is not itself hardship.

      In short no person should rely their circumstances as sufficient excuse not to commence proceedings out of time.

      Any party will have to show an explanation for the delay as well as hardship. Simply not knowing the law is not enough to convince the court to let you proceed out of time.

      What would happen if an Application for Permission to Proceed is Dismissed?

      The Application for property settlement will be dismissed and rights to a property settlement will be lost. You may have to pay the costs of your former husband.

      If your former husband is receiving Defence Force Retirement and Death Benefits Scheme (DFRDB Scheme) payments the situation can be even more complex.

      We suggest that you seek urgent advice from an experienced family lawyer. We offer an initial consultation for $143.00 inclusive of GST

  3. Brendon says:

    We that is my wife and i have a self managed superfund in our company I have been separated from her for 10mnths and want to apply for a divorce from her asap She resides in brisbane with my 11 yr old son I have had to move to uk to work and be near my family just wondering what to do next Can i apply for a divorce once separated for 12mnths outside of australia Please let me know thanks

    • Bryan says:

      You can apply for a divorce after you have been separated for twelve months and the application can be made outside Australia, as long as your former wife is still living in Australia.

      Please note that a property settlement is quite different to a divorce. Once a divorce order is final, you have only twelve months to start an application for property orders.

      Matters involving a family company and a self managed superannuation fund can be complex, and you should seek urgent legal advice. There can be serious tax implications and fines if a self managed superannuation fund is non-compliant, and if both parties are trustees, both parties can be penalized.

      We offer an initial consultation for a flat fee of $143 with an experienced family lawyer. This could be done by telephone if you require.

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