When separating or divorcing in Australia, superannuation is treated as part of the property pool.
If you or your former partner want to divide super as part of a property settlement, the law requires that everyone involved is treated fairly. This is where procedural fairness comes in.
Procedural fairness in superannuation means making sure that the super fund and both partners are given proper notice and the chance to be heard before any decisions are finalised.
If these steps aren’t followed, the super split could be delayed or even declared invalid. Let’s look at what this really means.
What Does Procedural Fairness Mean in Superannuation Splitting?
Procedural fairness is a legal requirement that applies when splitting super during a property settlement.
It means all the people or organisations affected by a decision must be given a fair chance to know what’s happening and respond.
In superannuation splitting, this applies to:
- The person who owns the super (the member)
- Their former partner (the non-member spouse)
- The trustee of the superannuation fund
Before the court makes orders or before a financial agreement is finalised to divide super, the trustee of the super fund must be informed.
This is to make sure the fund is able to carry out the split and that the trustee’s rights are respected. This process helps prevent future problems and protects everyone’s interests.
Who Needs to be Notified When Super Is Being Split in a Property Settlement?
The main person who must be notified is the trustee of the super fund. The trustee manages the fund and needs to know about any intended split because they are responsible for making it happen.
Before applying for court orders or signing a financial agreement, you must send a draft copy of the proposed order or agreement to the trustee. This gives the trustee a chance to:
- Review what is being asked
- Confirm whether the fund can legally follow the instructions
- Raise any concerns or suggest changes
This step is usually done using a Form 6 Declaration and providing information like the fund’s name, details of the super interest, and the member’s identification.
Only after the trustee has been given proper notice and has had a chance to reply can the agreement or order be finalised. This step is a key part of procedural fairness.
Also Read: What Happens to Super When You Divorce in Australia
Can a Property Settlement be Delayed due to Procedural Fairness Requirements?
Yes, a delay can happen if procedural fairness is not properly followed. This usually occurs when the trustee:
- Wasn’t notified at all
- Wasn’t given enough time to respond
- Raised a concern and no one addressed it
For example, if the court receives an application to split super but finds that the trustee wasn’t informed or didn’t approve the draft order, the court may refuse to proceed until that step is done.
This means your property settlement could be pushed back, sometimes by weeks.
To avoid delays, it’s important to prepare early. Make sure the trustee is contacted well in advance and given everything they need to review. The earlier this is done, the smoother the process will be.
What Happens If Procedural Fairness Is Not Observed in a Superannuation Split?
If procedural fairness is not observed, serious consequences can follow. Here are some possible outcomes:
- The court may reject the application: If the required notice to the trustee is missing, the court may not make any orders until procedural fairness is fixed.
- The super split may not be valid: If the trustee didn’t approve or wasn’t informed, they might not follow the order. This means the super remains untouched, even if you thought it was settled.
- You might have to start over: If the order or agreement is declared invalid, both parties may need to go through the entire process again, which costs more time and money.
- One party could be disadvantaged: If the non-member spouse expected to receive a super split and it doesn’t happen because of missed steps, they might miss out on what they’re entitled to.
Following procedural fairness is not just about legal rules—it helps ensure both parties get a fair outcome, and that the fund can carry out its duties without delay or risk.
Also Read: Understanding How Super Is Split in Divorce Settlements
Keeping Things Fair From The Start
Superannuation is often one of the most valuable assets in a property settlement. To make sure it’s dealt with properly, you must follow the rules of procedural fairness.
That includes letting the super fund trustee know what’s happening, giving them time to reply, and only finalising the settlement once that step is complete.
By doing this, you reduce the risk of delays, avoid unnecessary costs, and protect the rights of everyone involved.
Need Expert Help in Handling Your Superannuation Fairly?
Are you preparing for a property settlement involving super? The team at Ipswich Family Lawyers can help ensure procedural fairness is followed from start to finish.
We’ll guide you through the paperwork, help you notify the super fund trustee, and work to protect your interests with care and professionalism.
Get in touch today to book a consultation with one of our experienced family lawyers.
