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07 September 2018

Time to split

Family Law
Federal

Asked

Property settlement - Superannuation split procedure

I am acting for a party in a property settlement. The other party has asked for a superannuation split in their favour to which my client has agreed. This is the first time that I have dealt with a superannuation split and would like to understand the basics of how this works, when the other party is entitled to receive payment and a recommendation as to how it should be reflected in the consent orders.

Answered

Thank you for the question.

Superannuation, superannuation splits and the procedure for these is discussed in detail in our Property Settlement commentary. There are also precedent splitting orders on the matter plan that can be used.

Firstly, determine what type of superannuation interest it is, whether accumulation, defined benefit or a hybrid of the two. Read the commentary How is superannuation dealt with in family law? in our Property Settlement guide for more information. Accumulation is the most popular. Have the client complete a Form 6 Declaration and the accompanying Superannuation Information Request Form to obtain an up-to-date value of the interest: see the Superannuation Information Kit in section B. Pre-action procedures & other matters in the matter plan. This process can be employed by the member spouse regarding their own interest, or by the non-member spouse regarding their spouse’s interest.

Once that information is available, draft the orders and serve them on the trustee of the superannuation fund, to accord them procedural fairness.

The trustee of the superannuation fund will reply and confirm either that they agree with the orders as drafted or request amendments. Once the trustee agrees, the consent orders can be filed. Ensure that the response from the trustee is included.

The orders will then be made and will need to be served on the trustee so they can comply. This is usually done by the solicitor for the party who is receiving the super split, who will also contact the non-member spouse’s solicitor for information to enable the split to take place.

Regards

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