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.
What is superannuation splitting?
What are the steps in splitting super?
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Obtain information about your or your ex-partner's super
In accordance with the applicable laws and our policies, we will provide information about a super account to help in negotiating a settlement under the Family Law Act 1975. This information is used to calculate the value of super to assist in court proceedings or in the preparation of an agreement.
Who can apply for this information?
You can apply for this information if you are the member, a spouse of the member, or a person who intends to enter into an agreement with the member.
Fees
A fee of $170 (no GST charged) for members and $187 (including GST) for non-members is required per calculation date requested. The fee covers administrative costs and must accompany the request for information (you can download Form 6 at the bottom of this page).
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Obtain a valuation of the super
The information obtained from Step 1 can be used to calculate the value of the super account. This can be done by the applicant’s legal representative, consulting actuary or financial planner. Valuations are not undertaken by the super fund.
Different fund-specific factors and methodologies are used for valuing defined benefit funds as outlined by Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 as compared to accumulation funds.
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Enter into an agreement OR seek a consent or court order
Agreement
Generally, an agreement sets out how super will be split—by base amount or by percentage—as agreed upon by both people in the relationship. You can enter into an agreement before marriage, during marriage or after separation however, in most cases the agreement cannot come into effect until the parties have been separated for 12 months or more. It has to fulfil the legal requirements of the Family Law Act and have attached to it:
- certificates of independent legal advice for each person and
- a copy of either the divorce order ending the marriage, or a separation declaration.
Orders
You can seek:
- a Consent Order if you have mutual agreement on how super should be split. It will be formalised by the court without a hearing if the court considers the terms are just and equitable.
- a Court order if you can’t reach a mutual agreement and a hearing needs to be held by the court.
Sample court order wording
CSC has made available sample court order wording to help you and your legal representative prepare your own court order. These are to be used as a guide only.
What to include with your court order
A valuation of super must be provided to the court along with specified information as outlined at fcfcoa.gov.au. Your legal representative can also advise on the relevant requirements.
Send the proposed agreement or order to CSC
A proposed or draft order together with the date of hearing (if any) must be sent to us for assessment and allow 28 days for us to confirm the workability of the order, before having the final order issued by the court. Failure to give us 28 days may lead to further court proceedings at the expense of both people. Draft agreements do not need to be sent to us for assessment, but it is recommended.
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Serve the final order or agreement on CSC
A final Consent or Court Order or agreement must be given to CSC. Depending on what phase the super is in—growth or payment—there are specific documents that must accompany each:
- In the growth phase and for CSCri accounts: a notice to CSC setting out the required personal information of the non-member spouse receiving an entitlement (Regulation 72 of the Family Law (Superannuation) Regulation)
- In the payment phase for Defined Benefit Pension accounts: an application form (you can download the Assoc-Pens form at the bottom of this page) with the personal information and proof of identification is required to set up a separate account for the non-member spouse receiving the entitlement, and a Tax File Number Declaration form for that person, available from the ATO website.
Additionally, if you are submitting a superannuation agreement, you must also submit:
- a copy of the divorce order; or
- a Separation Declaration signed by one or both parties and a certificate signed by the legal representative for each person stating they have provided independent legal advice.
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.
Base amount splitting
ADF Super
FAMILY LAW ACT 1975
SHORT MINUTES OF ORDERS SOUGHT BY CONSENT
BY CONSENT it is ordered that:
- 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 Australian Defence Force Superannuation Scheme (ADF Super), [non-member spouse's name] is entitled to be paid (by the Trustee of ADF Super) 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.
- The operative time for Order 1 is [for example: four business days after the service of the final orders on the Trustee of ADF Super].
- This order binds the trustee of ADF Super.
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.
PSSap & CSCri
FAMILY LAW ACT 1975
SHORT MINUTES OF ORDERS SOUGHT BY CONSENT
BY CONSENT it is ordered that:
- 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.
- 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.
Percentage splitting
ADF Super
FAMILY LAW ACT 1975
SHORT MINUTES OF ORDERS SOUGHT BY CONSENT
BY CONSENT it is ordered that:
- 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.
- 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.
PSSap & CSCri
FAMILY LAW ACT 1975
SHORT MINUTES OF ORDERS SOUGHT BY CONSENT
BY CONSENT it is ordered that:
- 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 accumulation plan (PSSap) and/or the Commonwealth Superannuation Corporation retirement income (CSCri), [non-member spouse's name] is entitled to be paid (by the trustee) [____%] 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.
- The operative time for Order 1 is [for example: four business days after the service of the final orders on the Trustee].
- This order binds the trustee of PSSap.
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.
What happens next?
PSSap, ADF Super and CSCri
If the non-member spouse meets a condition of release they can provide payment details for their share of the member spouses CSC Super account. CSC will then pay this value to the non-member spouse.
If the non-member spouse does not meet a condition of release they will be asked to provide the details of their current Super Fund. CSC will then pay this value to the non-member spouse via a rollover to their existing Super Fund.
In both scenarios above, the benefit for the current member is then reduced. For a CSCri account this will result in the account being commuted to create a new CSCri account for the member spouse at the lesser value.
ADF Cover
There are no scheme specific rules for splitting ADF Cover benefits. ADF Cover benefits are splittable, therefore default splitting rules apply.
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:
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.
ADF Super forms
FORM6 Application for superannuation information - ADFS
Use this form to request information from CSC about a member’s superannuation account.
PSSap forms
FORM6 Application for superannuation information - PSSap
Use this form to request information from CSC about a member’s superannuation account.
72NMS Family law notice from a non-member spouse - PSSap
A non-member spouse must complete this form when subject to a splitting order or a splitting agreement in relation to a super interest in PSSap and/or CSCri.