Superannuation is considered an asset and the Family Law Act 1975 (Cth) allows super to be split between separated parties. There are two documents that can be used to split superannuation for family law purposes:
- Sealed Court Orders / Sealed Consent Orders; or
- Signed Binding Financial Agreement (BFA).
There are a number of steps in the super splitting process and each must be followed exactly.
1. Obtain a Valuation
Parties may require a valuation of their own super account or their ex-spouse’s account in order to determine how much superannuation to split and, if obtaining orders or consent orders, to prove to the court the value of the superannuation. The valuation is obtained using a Form 6 from the court’s website or the super fund’s own version of this form.
2. Draft Orders or a Draft Financial Agreement is Sent to Trustee (Procedural Fairness)
Before a financial agreement or court orders can be finalised, the trustee of your super fund needs to receive a draft of the orders or agreement to ensure it contains the correct legal wording and instructions for a superannuation split. The super fund trustee will then respond, confirming whether the terms are acceptable or whether an amended draft is required. This is referred to as providing ‘Procedural Fairness’. The procedural fairness responsibilities set out under section 90XZD of the Family Law Act 1975 (Cth) and Rule 10.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 require a copy of the draft orders that the parties intend to apply for, be provided to the Trustee at least 28 days before filing the application.
3. Finalising the Super Split
Once the trustee has given their approval and the binding financial agreement has been entered into, or the court has made orders, a certified true copy of the agreement or orders needs to be submitted to the trustee of the super fund. Some accept this by email while some require a paper copy to be sent in. Some funds may also require a letter from your solicitor stating that the binding financial agreement or orders have not been set aside. Most super funds will then provide a payment directions form to be completed and signed by the parties.
Choosing Between a Binding Financial Agreement or Consent Orders
We often find using a Binding Financial Agreement to be quicker, while an order of the court is used where the parties are already involved in court proceedings, or where a consent order is being used because parenting orders need to be made at the same time, or where the parties specifically want their property settlement to be by way of a court order for particular reasons.
Super Funds We Regularly Work With to Split Super
We regularly work with all the leading superannuation funds to split super for our clients, including:
- Australian Super;
- Australian Retirement Trust (ART);
- Aware Super;
- UniSuper;
- Hostplus;
- Colonial First State (CFS);
- REST Super (Retail Employees Superannuation Trust);
- HESTA Super Fund;
- Cbus Super (Construction and Building Unions Super);
- Mercer Super Trust;
- And any other super fund.
Jano Family Law provides a fixed-fee service for superannuation splitting using either a Binding Financial Agreement or Consent Orders.
Please contact us to get started using our New Client Form.