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As superannuation becomes ever increasing and self funding retirement is enshrined, this asset has become more important in the common pool to be distributed.


Often valuers are engaged to value respective super scheme sums. The variances in distribution need to be accurately calculated and effected. This if a tedious process and requires careful calculation. Since 28 December 2002, superannuation is regarded as property and therefore is an asset that needs to be identified in a property settlement claim. Refer to Part VIIIB of the Family Law Act. Under section 4(ca) “matrimonial cause” was amended to include superannuation.

Type (a) Orders are the most common whereby a non member spouse is entitled to be paid a base amount. If the amount is not distributed right away the Family Law Superannuation Regulation 2001 sets out the steps in the adjustment referred to as a “adjusted base amount”. Type (b) Orders are an entitlement according to a percentage of the splittable payment.

Flagging Orders assist in restricting what occurs with superannuation pending the determination of the Court.

You are required to identify all interests that both partners have in any Superannuation Fund and then to determine the value of that interest. The provisions also enable a ‘superannuation agreement’ to deal with entitlements which needs to accompanied by a separation declaration complying with section 90MP and 90G. Where no agreement can be reached, the Court can make orders subject to certain provisions of the Family Law Act. There are obligations pursuant to the relevant Superannuation Regulations that must be complied with to carry out the interest or payment split.

Once an Order or agreement is made a sealed copy must be served upon the Trustee with a Reg 72 Notice.