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.

What are the steps in splitting super?

  1. 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).

  2. 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.

  3. 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.

  4. 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

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.

Percentage splitting

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.

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

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:

Fund-specific information

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

MilitarySuper DFRDBPSSCSS

 

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. 

 

PSS FORMS

FORM6 Application for superannuation information - PSS

Use this form to request information from CSC about a member’s superannuation account.

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

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

DFRDB FORMS

FORM6 Application for superannuation information - DFRDB

Use this form to request information from CSC about a member’s superannuation account.

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

CSS FORMS

FORM6 Application for superannuation information - CSS

Use this form to request information from CSC about a member’s superannuation account.

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.

ADFS FORMS

FORM6 Application for superannuation information - ADFS

Use this form to request information from CSC about a member’s superannuation account.

72NMS Family law notice from a non-member spouse - ADFS

Provide details of non-member spouse in relation to a super-splitting order.

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.

You may also like...

Beneficiary nomination

Securing your super in safe hands when you die. Find out if you can nominate a beneficiary for your super.

Read the article: Beneficiary nomination

Early access to super

In some situations, you may be able to withdraw your super before you reach your preservation age.

Read the article: Early access to super

Sickness and injury

Sometimes the unexpected happens, and we’re here for you if it does.

Read the article: Sickness and injury