Guide to superannuation splitting by binding financial agreement

Did you know that superannuation can be split without obtaining a court order, by using a financial agreement instead. You may not need to split your super following separation, but if you do, it can be split in one of two ways:

  1. Using sealed court orders, or sealed consent orders
  2. Using a signed binding financial agreement (BFA)

How to split super

Step 1: Work out how much super you both have

Step 2: Prepare your documents

If you have decided to split your super or your ex-partner’s super as part of your property settlement, you will need to correctly prepare the required documents, this can be quite technical and requires care. A binding financial agreement must be drafted by your lawyer in such a way as to satisfy the trustee of the super fund and comply with the relevant legislative requirements, otherwise the super fund will not accept the split application and you will need to start again. Similarly, if applying for court orders, your lawyer will first need to obtain the approval of the trustee of the super fund by a process known as providing procedural fairness, otherwise the court will not make the orders for you. In any event, you or your lawyer needs to send the super fund a copy of all the proposed documents before they are finalised to avoid any problems.

Step 3: Obtain the sealed court orders or signed binding financial agreement

Once you have obtained the sealed court orders or signed binding financial agreement, you or your lawyer will need to send a certified true copy of the documents to the trustee of the super fund. If you are using a binding financial agreement, you also need to send a signed separation declaration or divorce order to the trustee. Each super fund also has its own form that needs to be filled in, signed, and sent in along with this documentation.

Step 4: Finalise your super split

Now that the trustee of the super fund has received all the required documentation, the super fund will proceed to split the super as requested.

Splitting super after separation or divorce

Splitting super after separation or divorce is not necessarily difficult, but it is a little complex technically. In preparing the documents, you need to ensure you use the correct fund name, the correct trustee details, use the appropriate wording as preferred by that particular super fund trustee, and ensure all other details are correct, such as the names of the parties, the amount of the split, the method of calculating the amount, the operative time, etc. You also need to make sure that there are no contradictory clauses in the binding financial agreement, or if using court orders, that the trustee has been provided with procedural fairness. There is a lot that can go wrong if you try to do it yourself and for a fixed-fee you can get this done properly and professionally by an experienced family lawyer.

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