If you and your former partner have very different superannuation balances when you separate, you may wish to obtain what are known as ‘superannuation splitting orders’. Specifically, you can ask the Court to order that a sum that you agree on be taken out of one party’s superannuation fund and deposited into the other party’s superannuation fund.
You can do this by agreement, or ‘by consent’, and subject to filing an Application for Consent Orders with the Federal Circuit and Family Court of Australia.
Before you ask the Court to make a superannuation splitting order, you first need to obtain the approval for the order that you’re seeking from the fund that’s going to be transferring money to the other person’s fund. This is what is known as ‘procedural fairness’. The superannuation fund is going to be bound by a court order, so the fund is required to be given notice of the proposed order that will bind them, and to be given an opportunity to object to the order being made if appropriate.
In general however, the super funds do not have any reason to object to the making of proposed superannuation splitting orders and will grant approval, as long as there are sufficient funds held in the account to facilitate the split. Super funds can however be very particular about the wording of the superannuation splitting orders, so it is very important that the orders be drafted by a solicitor who practices in family law all the time and is used to the requirements. The Court will not make orders splitting superannuation unless it either has evidence that the super fund has approved the proposed orders, or unless there is evidence that the fund has been given 28 days to approve the proposed orders and has not responded.
Importantly, you can’t get access to the funds generated by a superannuation split. That is, you can’t ask the Court to make an order for a super fund to just pay you the money directly. The superannuation split funds must be deposited into your own superannuation fund, or a new fund set up in your name with the fund where the money is coming from.
