Procedural fairness is a very wide legal concept related to whether a court has exercised fairness when arriving at an administrative decision. The idea ensures that the court has not arrived at a decision that may be unfair, unjust or inequitable.
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Splitting order
In family law, a splitting order is a common way to divide superannuation funds between parties. In the context of a superannuation split in family law, procedural fairness refers to ensuring that the process of dividing superannuation assets is carried transparently and fairly.
The concept aims to protect the interests and procedural rights of both parties to achieve a fair distribution of superannuation assets.
Why a splitting order?
Following the end of a long relationship, it can be common for couples to use a superannuation split as a means of achieving an equitable division of the net matrimonial assets or equalising the superannuation benefits of the parties.
One party may have stayed at home during the relationship to care for the children and home, thereby allowing the other party to work and accrue a substantial superannuation interest. Note that a superannuation split does not have to be 50/50.
You may wish to negotiate a division that is tailored to your unique situation, whereby, for instance, you seek a larger portion of the property assets while your spouse maintains the majority of their superannuation entitlements.
For this outcome to be achieved, the party (or party’s lawyer) who has agreed to distributing their super interest must first contact the trustee of their superannuation fund to obtain the trustee’s consent to a division or splitting of the entitlements held in the fund.
How a splitting order can be made
Before the Court can make a splitting order, the trustee of the subject superannuation fund must be provided with notice of the proposed order. Evidence that procedural fairness has been carried out is usually demonstrated by way of filing an affidavit attaching:
- The letter to the trustee of the super fund seeking procedural fairness;
- The response from the trustee, including any instructions made by the trustee; and
- A current statement illustrating the value of the super fund to prove that the member spouse has sufficient funds to enable a splitting of the fund to occur.
The trustee of the fund has discretion to object to an order for the splitting of the fund and this can be quite common. For instance, the trustee may suggest alternate wording be used in the proposed orders to reflect the preferred wording required by the fund to reflect the fund’s interpretation of the relevant legislation, or to correct the member spouse’s details held by the fund.
Once a splitting order has been made by the Court, a sealed copy of the order must be provided to the trustee of the subject superannuation fund to affect the split.
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