Excerpt from divorce.gov.au

How the law deals with superannuation when couples are dividing their assets after a marriage/de facto relationship breakdown.  The following is a summary of 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). 

Separating couples may either: 

• Enter into a formal written agreement to split superannuation.  A formal written agreement requires that both you and your partner instruct a lawyer who must sign a certificate stating that independent legal advice about the agreement has been given.  Once this agreement is made you do not need to go to court.  The agreement is not registered in court and you must be careful that each of you retains a copy, or;
• seek consent orders to split superannuation, or;
• if you cannot reach an agreement, seek a court order to split superannuation. 

Even when an application is made to a court, it is possible to reach an agreement at any stage, without the need for a court hearing.  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: 

• Form 6 Declaration. This satisfies the trustee of the fund that you are entitled to get the information for this limited purpose, and;
• Superannuation Information Request Form (accompanied by the appropriate Superannuation Information Form). 

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.  The kit is available under the 'Forms' section of divorce.gov.au or, by calling 1300 352 000 or, from your nearest family law registry. 

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 this. 

How super 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: 

• Self-managed superannuation funds - they are generally valued with the assistance of an expert such as an accountant 
• Where the Attorney-General has approved a fund using a different valuation method. 

Step 2: Decide the method of splitting 

Either enter into a formal written agreement or obtain a court order. 

Obtaining a court order 

You get court orders about the division of property in two ways: 

• By consent of the parties.  If you and your partner have reached an agreement at the outset, then an Application for Consent Orders application can be filed in the Family Court, accompanied by a consent order recording the agreement.  The orders can then be made in chambers without either of you attending court, or; 
• as a result of a court hearing.  Even if you start proceedings, you can reach an agreement at any stage and once the orders recording the agreement are made you do not need to attend court further. 

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

To start proceedings in the Federal Magistrates Court you must file an Initiating Application, and Information Sheet and a Financial Statement.  The other party will file a Response and a Financial Statement. 

To commence proceedings in the Family Court you must file an Initiating Application together with a Financial Statement.  The other party will file a Response to Initiating Application together with a Financial Statement. Informing the superannuation fund... to read the remainder of this article go to superannuation...