How does the law treat superannuation?
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 superannuation 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
Your respective superannuation interests can be adjusted by ‘splitting’ one or more of them. If you want to adjust superannuation interests, you must do so when formalising your financial arrangements, whether by agreement (see We have agreed) or application to the Court (see We cannot agree). However, it is not mandatory to adjust superannuation interests.
Procedural fairness to trustee
Superannuation splitting orders require the trustee of the relevant superannuation fund to do certain things. As a matter of procedural fairness (the right by a person to be heard by the Court before the Court makes orders affecting that person), the trustee of the superannuation fund must be given notice of a proposed superannuation splitting order before it can be made, whether by agreement or following a determination by the Court.
See rules 1.13(7), 1.13(8) and 10.06 of the Family Law Rules 2021.
For more information, including the steps involved in splitting a superannuation interest, see the factsheet Family law and superannuation.
You are not required to be represented by a lawyer, or to seek legal advice, before entering into consent orders or applying to the Court, or if you have been served with an application. However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.
For information on how to get legal advice, see Legal Help.