Superannuation Splitting

Superannuation entitlements are able to be treated as "property" and can be split between separating parties at the time of a property settlement. "Superannuation splitting orders" are used to divide parties' superannuation interests or entitlements.

De facto couples

Part VIIIC of the Family Law Act 1975 (Cth) ("FLA") contains information in relation to the superannuation splitting scheme for de facto couples.

Married couples

Part VIIIB of the FLA contains information in relation to the superannuation splitting scheme for married couples.

Eligible Superannuation Plans

Parties may seek orders to divide a person's interest in an eligible superannuation plan. An eligible superannuation plan means any of the following:

• a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act (SIS Act);
• an approved deposit fund;
• a retirement savings account (RSA);
• an account within the meaning of the Small Superannuation Accounts Act 1995; or
• an eligible annuity (a deferred or immediate annuity purchased wholly with superannuation monies).

The Trustee includes an RSA or eligible annuity provider and any person who manages the particular plan.

If you require information about your former spouse or de facto partner's superannuation entitlements, you may wish to complete a Form 6 from the Superannuation Information Kit. Once proceedings have commenced, you can also obtain information from the ATO about the other party's superannuation entitlements.

Types of superannuation splits

Section 90XT of the FLA (for parties who are/were married) / Section 90YY of the FLA for parties who were in a de facto relationship) identifies three different types of superannuation splits, so that the non-member spouse receives:

• a specific dollar amount of the member spouse’s superannuation;
• a percentage of the splittable payment; or
• for percentage only interests, an amount calculated in accordance with the regulations by reference to the percentage specified in the order.

Notification to superannuation fund trustee

Before the Court can make a superannuation splitting order, the Trustee of the fund must be given notification of the proposed orders.

That means that parties must send a copy of the proposed orders to the superannuation fund not less than 28 days before they file their Application for Consent Orders, or the Court hearing where the judicial officer is being asked to make the orders. Ordinarily, the superannuation fund will respond within 28 days of receiving the draft orders.

If any changes are required, the parties must amend the proposed orders and send them back to the fund for approval again.

If no changes are required, the superannuation fund will send a letter advising that they do not object to the orders as drafted. A copy of that letter must be filed at the Court.

If the superannuation fund have not responded after 28 days, parties are entitled to assume that the Trustee does not take any issue with the drafting of the orders.

Parties should file their proposed orders, along with a copy of the correspondence sent to the fund, and include a note that no response has been received.

Example of superannuation splitting orders

The following is an example of a basic set of orders that may be approved by an industry superannuation fund (this does not include self-managed superannuation funds) for a superannuation split of a specific dollar amount. Parties must check specifically with each fund whether they would approve the proposed orders using the process set out above. Also see examples of property orders.

In accordance with Section 90XT(1)(a) (for parties who are/were married) / Section 90YY(1)(a) (for parties who were in a de facto relationship) of the Family Law Act 1975, whenever a splittable payment within the meaning of Section 90XE of the Act (for parties who are/were married) / s90YG (for parties who were in a de facto relationship) becomes payable to or on behalf of the [member spouse, eg Husband/Wife] from his/her interest in the [insert name of fund] Superannuation (“the Fund”), the [non-member spouse] shall be entitled to be paid an amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 using a base amount of $[dollar amount] and there be a corresponding reduction in the entitlement that the [member spouse] would have had but for these Orders. Order 1 shall bind the Trustee of the Fund and shall take effect from the operative time being the fourth business day after the date of service of these Orders on the Trustee. The [member spouse] shall forthwith cause a copy of these Orders to be served upon the Trustee of the Fund and request the Trustee to note the Orders and act in relation to any payment in accordance with the [member spouse]’s obligations. Pending implementation of paragraph 1 above, the [member spouse] be and is hereby restrained from receiving, disposing of, encumbering, or otherwise dealing with his superannuation entitlements with the Fund save as specified in these Orders.

The Court must also make a declaration as to the value of the member spouse/de facto partner's interest in the Fund. You will need to include a statement to that effect with your orders, and provide evidence of the value (the most recent member benefit statements).

Last updated: 5-Dec-2022

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