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Family law and superannuation



This fact sheet explains how the law deals with superannuation when couples divide their property after the breakdown of a marriage or de facto relationship.

Superannuation splitting law
The superannuation splitting law treats superannuation as a different type of property. It lets separating couples value their superannuation and split superannuation payments, although this is not mandatory.

Splitting does not convert it into a cash asset – it is still subject to superannuation laws (for example, it is usually retained until retirement ages are reached).

Options for splitting superannuation
Separating couples may either:

You should get legal advice 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. You should provide the following forms to the trustee of the superannuation fund:

The superannuation fund may charge a fee for providing the 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:

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. You should get legal advice 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:


Step 2 
Decide the method of splitting
Either enter into a formal written agreement or obtain a court order.

Obtaining a court order
You obtain court orders about the division of property in two ways:

Either way, you need to file an application with the Court. Registry staff can tell you what forms to file.

To start a case in the Family Court, you must file an Initiating Application (Family Law) together with a Financial Statement. The other party will file a Response to an Initiating Application (Family Law) together with a Financial Statement.

To start a case in the Federal Circuit Court you must file an Initiating Application (Family Law), an Affidavit and a Financial Statement.

To obtain a copy of these forms:

The information from the superannuation fund trustee will help you 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, you must tell the superannuation fund trustee about the orders you are seeking. 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. 

Legal advice
You should get legal advice before deciding what to do. A lawyer can help you understand your legal rights and responsibilities, and explain how the law applies to your case. A lawyer can help you reach an agreement with your former partner without going to court.

You can get legal advice from a:

Court staff can help you with questions about court forms and the court process, but can not give you legal advice.

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Are you having trouble understanding legal words used in this form?

You can find more information about legal words used in this form in the following locations:

Legal words used in court (Family Law Courts brochure)

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