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Separation and divorce (super splitting)

Super can be a major asset in a relationship, and there are laws to help determine if and how it should be divided during family law matters like separation and divorce.

Separation and divorce can be a stressful and difficult process, with many decisions to make and financial implications to consider.

Things to know

  • The information on this page is general in nature, and we recommend seeking legal advice and/or advice from a licensed financial planner to understand the rules, requirements and exceptions when it comes to super and separation and divorce.
  • Laws on splitting super may differ between states.
  • Superannuation splitting is different from contribution splitting. For more information on contributions splitting, check the ATO website.
Man running with dog

What is superannuation splitting?

Superannuation splitting—or super splitting—is when super is considered as an asset to be split between both people when a marriage or de facto relationship breaks down. It’s not mandatory to do. Super is treated as property under the Family Law Act 1975, but it differs from other types of property because it is held by the super fund until eligible for release.

How can super be split?

Generally, these are the ways super can be split:

  • Agreement

    Super can be split under a financial agreement that covers various assets, or a superannuation agreement that only addresses super. Both agreements outline how the super will be split.

  • Orders

    Without a financial or superannuation agreement, the Court can determine how super is split, either through a:

    • a) Consent Order—that is, both parties agree on how super will be split. If the Court considers the split to be fair, they will make it binding without a court hearing
    • b) Court Order—if parties can't agree on how to split super, the court will hold a hearing to determine how it will be split. 

Flagging Orders

The Court can also make an order requiring a flag be placed on a member's benefit. A Flagging Order prevents the Trustee from making any splittable payment without further order of the Court.

Growth phase vs payment phase

Whether super is in the growth phase or payment phase will affect the final outcome of how super is split. Here is the difference between the two:

  • The growth phase is where super is still accruing because the member is contributing or has a preserved benefit.
  • The payment phase is where a pension or income stream is being paid to the member.

Sample court order wording

Important information

The Federal Circuit and Family Court of Australia may make a splitting order under section 90XT of the Family Law Act 1975 (the Act) provided the Commonwealth Superannuation Corporation (CSC) has been accorded procedural fairness as required by section 90XZD of the Act.

Rule 10.06 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 requires that CSC be provided with a copy of the draft splitting order and be given a period of 28 days within which to advise of any objection.

Orders sought in terms similar to that suggested below would facilitate CSC’s concurrence with any proposed orders.

Note for DFRDB members

For family law purposes, DFRDB and the Productivity Benefit Scheme are regarded as two different superannuation schemes. Therefore, separate orders must be used splitting DFRDB and Productivity Benefit Scheme benefits.

Base amount splitting

CSS

FAMILY LAW ACT 1975

SHORT MINUTES OF ORDERS SOUGHT BY CONSENT

BY CONSENT it is ordered that:

  1. In accordance with section 90XT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of [member’s name] from [his/her] interest in the Commonwealth Superannuation Scheme (CSS), [non-member spouse's name] is entitled to be paid (by the Trustee of CSS) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of [$________] and there is a corresponding reduction in the entitlement [member’s name] would have had but for these Orders.
  2. The operative time for Order 1 is [for example: four business days after the service of the final orders on the Trustee of CSS].

NOTATION:

The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

DFRDB

  • Example A

    Orders split DFRDB benefit (established under the Defence Force Retirement and Death Benefits Act 1973).

    FAMILY LAW ACT 1975

    SHORT MINUTES OF ORDERS SOUGHT BY CONSENT

    BY CONSENT it is ordered that:

    1. In accordance with section 90XT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of [member’s name] from [his/her] interest in Defence Force Retirement and Death Benefits Scheme (DFRDB), [non-member spouse's name] is entitled to be paid (by the Trustee of DFRDB) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of [$________] and there is a corresponding reduction in the entitlement [member’s name] would have had but for these Orders.
    2. The operative time for Order 1 is [for example: four business days after the service of the final orders on the Trustee of DFRDB].

    NOTATION:

    The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

  • Example B

    Orders split the interest in the Productivity Benefit Scheme (established under the Defence Force (Superannuation) (Productivity Benefit) Determination 1988 issued under the Defence Act 1903).

    FAMILY LAW ACT 1975

    SHORT MINUTES OF ORDERS SOUGHT BY CONSENT

    BY CONSENT it is ordered that:

    1. In accordance with section 90XT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of [member’s name] from [his/her] interest in the Productivity Benefit Scheme (PBS), [non-member spouse's name] is entitled to be paid (by the Trustee of the PBS) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of [$________] and there is a corresponding reduction in the entitlement [member’s name] would have had but for these Orders.
    2. The operative time for Order 1 is [for example: four business days after the service of the final orders on the Trustee of the PBS].

    NOTATION:

    The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

MilitarySuper

FAMILY LAW ACT 1975

SHORT MINUTES OF ORDERS SOUGHT BY CONSENT

BY CONSENT it is ordered that:

  1. In accordance with section 90XT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of [member’s name] from [his/her] interest in Military Superannuation and Benefits Scheme (MilitarySuper), [non-member spouse's name] is entitled to be paid (by the Trustee of MilitarySuper) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of [$________] and there is a corresponding reduction in the entitlement [member’s name] would have had but for these Orders.
  2. The operative time for Order 1 is [for example: four business days after the service of the final orders on the Trustee of MilitarySuper].

NOTATION:

The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

PSS

FAMILY LAW ACT 1975

SHORT MINUTES OF ORDERS SOUGHT BY CONSENT

BY CONSENT it is ordered that:

  1. In accordance with section 90XT(1)(a) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of [member’s name] from [his/her] interest in the Public Sector Superannuation Scheme (PSS), [non-member spouse's name] is entitled to be paid (by the Trustee of PSS) the amount calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001, using a base amount of [$________] and there is a corresponding reduction in the entitlement [member’s name] would have had but for these Orders.
  2. The operative time for Order 1 is [for example: four business days after the service of the final orders on the Trustee of PSS].

NOTATION:

The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

Percentage splitting

CSS

FAMILY LAW ACT 1975

SHORT MINUTES OF ORDERS SOUGHT BY CONSENT

BY CONSENT it is ordered that:

  1. In accordance with section 90XT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of [member’s name] from [his/her] interest in the Commonwealth Superannuation Scheme (CSS), [non-member spouse's name] is entitled to be paid (by the Trustee of CSS) [____%] of the splittable payment and there shall be a corresponding reduction in the amount [member’s name] would be entitled to receive but for these Orders.
  2. The operative time for Order 1 is [for example: four business days after the service of the final orders on the Trustee of CSS].

NOTATION:

The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

DFRDB

  • Example A

    Orders split DFRDB benefit (established under the Defence Force Retirement and Death Benefits Act 1973).

    FAMILY LAW ACT 1975

    SHORT MINUTES OF ORDERS SOUGHT BY CONSENT

    BY CONSENT it is ordered that:

    1. In accordance with section 90XT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of [member’s name] from [his/her] interest in Defence Force Retirement and Death Benefits Scheme (DFRDB), [non-member spouse's name] is entitled to be paid (by the Trustee of DFRDB) [____%] of the splittable payment and there shall be a corresponding reduction in the amount [member’s name] would be entitled to receive but for these Orders.
    2. The operative time for Order 1 is [for example: four business days after the service of the final orders on the Trustee of DFRDB].

    NOTATION:

    The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

  • Example B

    Orders split the interest in the Productivity Benefit Scheme (established under the Defence Force (Superannuation) (Productivity Benefit) Determination 1988 issued under the Defence Act 1903).

    FAMILY LAW ACT 1975

    SHORT MINUTES OF ORDERS SOUGHT BY CONSENT

    BY CONSENT it is ordered that:

    1. In accordance with section 90XT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of [member’s name] from [his/her] interest in the Productivity Benefit Scheme (PBS), [non-member spouse's name] is entitled to be paid (by the Trustee of the PBS) [___%] of the splittable payment and there shall be a corresponding reduction in the entitlement [member’s name] would be entitled to receive but for these Orders.
    2. The operative time for Order 1 is [for example: four business days after the service of the final orders on the Trustee of the PBS].

    NOTATION:

    The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

MilitarySuper

FAMILY LAW ACT 1975

SHORT MINUTES OF ORDERS SOUGHT BY CONSENT

BY CONSENT it is ordered that:

  1. In accordance with section 90XT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of [member’s name] from [his/her] interest in Military Superannuation and Benefits Scheme (MilitarySuper), [non-member spouse's name] is entitled to be paid (by the Trustee of MilitarySuper) [____%] of the splittable payment and there shall be a corresponding reduction in the amount [member’s name] would be entitled to receive but for these Orders.
  2. The operative time for Order 1 is [for example: four business days after the service of the final orders on the Trustee of MilitarySuper].

NOTATION:

The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

PSS

FAMILY LAW ACT 1975

SHORT MINUTES OF ORDERS SOUGHT BY CONSENT

BY CONSENT it is ordered that:

  1. In accordance with section 90XT(1)(b) of the Family Law Act 1975 (the Act), whenever a splittable payment within the meaning of section 90XE of the Act becomes payable to or on behalf of [member’s name] from [his/her] interest in the Public Sector Superannuation Scheme (PSS), [non-member spouse's name] is entitled to be paid (by the Trustee of PSS) [____%] of the splittable payment and there shall be a corresponding reduction in the amount [member’s name] would be entitled to receive but for these Orders.
  2. The operative time for Order 1 is [for example: four business days after the service of the final orders on the Trustee of PSS].

NOTATION:

The parties note that this Order, and payments made as a result, will be affected by the Superannuation Legislation Amendment (Family Law) Act 2004 which came into effect on 18 May 2004 and the Family Law (Superannuation) Regulations 2001 which together provide for a separate superannuation interest to be created for the non-member spouse and for consequential effects on payments.

Disclaimer

CSC does not provide legal and/or financial advice. The sample wording is to be used as a guide and is not a substitute for independent legal advice.

Woman looking out at the water

What happens next?

CSS, PSS, DFRDB and MilitarySuper

Depending on your fund, a new account will be created for the non-member spouse, provided the base amount allocated to the non-member spouse does not exceed the value of the member’s interest at the operative time. The benefit for the current member is then reduced.

  • If the super fund is in the payment phase, the member's pension will be reduced and a new pension account will commence for the non-member spouse.
  • If the super fund is in the growth phase, the separate accounts will be kept until each person becomes eligible for payment of their benefit.

If the associate pension is less than $1,300 per annum (indexed twice yearly from 1 July 2004), then the non-member spouse can elect to commute the pension to a lump sum. This is equivalent to the value of the transfer amount from which the pension is derived.

This election must be made in writing to CSC, no later than three months after the non-member spouse becomes entitled to the pension. This can be done within the associate benefit application form. A lump sum amount will only be paid if they are eligible to commute the pension.

Current indexed threshold CSS, PSS, MilitarySuper & DFRDB
July 2023 $2,152.97

 

Historical thresholds CSS, PSS, MilitarySuper & DFRDB
January 2023 $2,084.19
July 2022 $2,011.77
January 2022 $1,943.74
July 2021 $1,915.01

Advice and resources

There is a lot to decide and organise at the end of a relationship, and we suggest you seek legal advice and/or advice from a licensed financial planner. You can also learn more about super splitting and separation or divorce from:

Fund-specific information

We’ve created the following factsheets that detail the process for super splitting specific to each fund.

MilitarySuperDFRDBPSSCSS

 

Questions?

We know the process of super splitting can be overwhelming, especially during a stressful life change like separation or divorce. We’re here to help guide you through. 

 

Contact us

CSS FORMS

ASSOC-PENS Application for an associate pension by the former spouse of a CSS pensioner

Apply for a share of pension income as a former spouse of CSS pensioner.

DFRDB FORMS

ASSOC-PENS Application for an associate pension* by the former spouse of a DFRDB/DFRB pensioner

Application for an associate pension* by the former spouse of a DFRDB/DFRB pensioner

MILITARYSUPER FORMS

FORM6 - Application for superannuation information

This form may be used by an eligible person in relation to the account of a member of CSS, PSS, DFRDB or MilitarySuper to request Commonwealth Superannuation Corporation (CSC), to provide certain information about a member’s superannuation account.

ASSOC-PENS Application for an associate pension* by the former spouse of a MilitarySuper pensioner

Application for an associate pension* by the former spouse of a MilitarySuper pensioner

PSS FORMS

ASSOC-PENS Application for an associate pension* by the former spouse of a PSS pensioner

Application for an associate pension* by the former spouse of a PSS pensioner

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