The Strategy Spine is designed to ensure that no part of a matter is treated as purely administrative. Resolve, the final step of the Spine, exists precisely to prevent the kind of errors that can crystallise at the end of a matter: silent concessions, unresolved risk, or technically defective orders that unravel after settlement. Superannuation splitting is one of the highest-risk areas for exactly this kind of late-stage failure. A systematic approach to legal thinking, embedded throughout the strategy, is the only reliable protection. Superannuation splitting is one of the fastest ways for Orders to be rejected by a fund trustee. A clean, compliant super split starts with a systematic approach. Before filing any proposed Orders with the Court, here are the critical checks every practitioner should complete.

1. Identify the Exact Type of Fund

The type of super fund drives everything — valuation, drafting, and the trustee’s internal requirements. Always confirm:

• Industry or retail fund
• Self-Managed Superannuation Fund (SMSF)
• Defined benefit fund
• Commonwealth or government scheme
• Other fund type

This should be verified early. Do not rely on client assumptions — as part of disclosure your client is required to provide member statements, fund details, and any trust deed and tax returns (for SMSFs).

2. Ensure the Valuation Is Correct and Current

Every fund has strict valuation rules. Before drafting Orders:

• Retail/Industry funds:
  • Obtain a fresh Form 6 from the trustee.
  • Ensure the valuation supplied is still in date (most funds provide a 90-day window).
• Defined benefit funds:
  • Obtain a fresh Form 6 from the trustee.
  • Send the Form 6 data to a valuer to obtain a formal valuation.
  • Do not draft Orders until the valuation is received, as defined benefit entitlements rarely match annual statements.
• SMSFs:
  • External valuation must be obtained if the fund holds non-cash assets (real property, shares, units, collectables to be valued).
  • Confirm the valuation complies with ATO requirements and the SMSF trust deed allows for splitting.
  • Check tax returns, depreciation schedules and member benefits for proportionate holdings/splits.

3. Check Compliance Before You Draft

Before drafting, confirm:

• The fund is splittable (some government schemes are restricted).
• The valuation outcome supports the intended split.
• The trustee’s model wording (if provided) has been reviewed.
• Whether the split must be drafted as a base amount, set amount or a percentage — as these terms have different meanings under superannuation law:
  • Base amount = a fixed dollar figure indexed by fund growth or depreciation
  • Set/Fixed amount = a set amount which is neither indexed nor moveable
  • Percentage = a proportion of the member’s entitlement at the operative time

If you choose the wrong format, the split may not be as negotiated or anticipated — creating liability issues for the firm and a possible application to set aside or rectify the orders.

4. Draft the Orders With Precision

When drafting:

• Incorporate the exact trustee details (including fund name and ABN).
• Use language consistent with the Family Law (Superannuation) Regulations.
• Ensure operative timing and payment flags (if relevant) are correctly expressed.
• Double-check that the formula or amount matches the valuation provided.
• Ensure especially with SMSFs that the Orders are complete and deal with all of the steps required (including removing directors from trustee companies, tax returns, liabilities and assets).

A small drafting error can cause major delays in implementation and/or create ongoing legal issues due to lack of clarity and enforcement issues.

5. Put the Trustee on Notice — and Wait the Required Period

Before filing the Orders, ensure:

• The super fund has been formally served with the proposed Orders.
• At least 28 days has passed (unless the trustee consents earlier).
• A letter of no objection has been received or the waiting period has expired.

The Court will not make a superannuation split without this procedural step being satisfied.

Final Takeaway

A compliant super split is the product of careful identification, accurate valuation, precise drafting, and proper notice. Running these checks every time dramatically reduces delays, avoids rejections from trustees, and ensures your client’s property settlement is implemented smoothly. Superannuation splitting is the kind of technical area where the Strategy Spine earns its value at the Resolve stage. The resolution readiness and file closure principles built into the Spine are designed to catch precisely these risks: wrong fund types, stale valuations, incorrect split formats, and missed procedural steps — before orders are filed and errors become permanent. Strategy does not stop at settlement. It runs through to the last detail of implementation, and that is where Resolve does its most important work.