When a couple separates and has significantly different amounts of superannuation, they may consider obtaining ‘superannuation splitting orders’ to help balance out their retirement savings. This involves asking the Court to approve the transfer of an agreed-upon sum from one party’s superannuation fund to the other party’s fund, either by mutual agreement or ‘by consent’.
To initiate this process, an Application for Consent Orders needs to be filed with the Federal Circuit and Family Court of Australia. Before seeking the Court’s approval for a superannuation splitting order, it’s necessary to obtain consent from the fund that will be transferring the money.
This is known as ‘procedural fairness’, as the superannuation fund must be given notice of the proposed order and the opportunity to object to it if necessary. Typically, super funds do not object to these orders as long as there are sufficient funds in the account to facilitate the split. However, they may be particular about the wording of the orders, so it’s crucial to have a family law solicitor with expertise in this area draft the orders to ensure compliance with the fund’s requirements.
The Court will only approve superannuation splitting orders if there is evidence that the super fund has approved the proposed orders or if the fund has been given 28 days to respond and has not objected. It’s important to note that the funds generated by a superannuation split cannot be accessed directly; they must be deposited into the recipient’s superannuation fund or a new fund set up in their name with the transferring fund.
