Hi there. If a marriage or de facto relationship has broken down, the parties will usually need to decide how their shared property and finances (including superannuation) are to be divided. There are three ways this can be done.

1. Financial agreement

If you and your former partner can agree on the division of property (including superannuation), you can put these terms into a formal written agreement (called a ‘financial agreement’). For a financial agreement to be legally enforceable, you must each obtain independent legal advice about the contents of the document. A lawyer must sign a certificate confirming that independent legal advice has been given.

2. Consent orders

If you and your former partner can agree on the division of property (including superannuation), you can seek consent orders from the court. To obtain these orders: (a) you must complete a Superannuation Information Kit, which guides you through obtaining a valuation of your superannuation; (b) you must file an Initiating Application together with a Financial Statement and Affidavit; and (c) your former partner must file a Response to Initiating Application plus their own Financial Statement and Affidavit. These documents are available from the Family Court website (www.familycourt.gov.au). Although consent orders are available without obtaining legal advice, it is strongly recommended that you speak to a lawyer to ensure you understand the implications of splitting your superannuation or other property.

3. Court orders

If you and your former partner cannot reach an agreement on the division of property (including superannuation), you can apply to court for a determination on how your property is to be divided. The court requires parties to first undergo a dispute resolution process, in an attempt to resolve the matter without ending up in court. If the parties still cannot reach an agreement, one party may file an Initiating Application with the court to obtain orders for the division of property.

Suggested way forward

Your options for splitting property (including superannuation) are set out above. Although independent legal advice is only required in relation to the preparation of a 'financial agreement', speaking to a lawyer about your situation and the best way to protect your interests is strongly advisable in all cases. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.