Although the legislation dealing with the splitting of superannuation funds as part of a property settlement is complex, there is, again, no formal requirement for either party to obtain independent legal advice in relation to the construction of those Orders.
However, those particular clauses are not necessarily straightforward or easy to understand and usually contain the most “legalese” of property orders routinely made at the Family Court.
It is important to remember that where superannuation splitting Orders are sought by way of a Consent Application, the agreement of the Trustee to the Superannuation Fund being split is also required.
You must, accordingly, send a draft copy of the proposed Orders to the Trustee of the relevant fund to ensure that they are satisfied with the terms and format of the Orders which will, of course, affect the Trustee.
The Trustee then has 28 days within which to respond, intimating any changes or corrections it requires in the draft Orders.
A copy of the letter from the Super Fund approving the Orders in their final format should be forwarded to the Family Court along with the Form 11 Application.
If the Court is not satisfied that the Trustee of the relevant fund has been given due notice under the Family Law Act, then the Orders will not be made at that time.
Before any super-splitting Orders can be implemented, the Trustee must receive a sealed, certified copy of the Orders after they are made.
It must be noted that Super Splitting Orders still cannot be made between parties who have never been married.  Although the relevant legislation is anticipated to finally come into force next year, the Court at this time (December 2021) still has no power to make Splitting Orders between de facto parties.