Superannuation funds in family law property proceedings are considered an asset which form part of the family property pool during a separation or divorce.
In the past, to obtain information regarding a former spouse’s superannuation assets in family law proceedings, it has been limited to the former partner disclosing this information.
However, from 1 April 2022, an application can now be made to the Federal Circuit and Family Court of Australia (‘FCFCOA’), requesting information related a former partner’s superannuation fund, if family law property proceedings have been commenced.
The superannuation information is collected and held by the Australian Taxation Office (‘ATO’), and once a request has been made, usually it will take seven (7) days to receive a response from the ATO.
By granting the Court the power to obtain information held by the ATO, it is predicted to result in quicker and fairer family law property settlements.
The purpose of the change is to increase the transparency of the superannuation asset in family law proceedings, and prevent the under-reporting of this asset, thereby making it more difficult for parties who are attempting to conceal their total superannuation assets.
The changes in the legislation will make the task of identifying a non-disclosed superannuation asset, easier, cost effective, and efficient.
Although parties are obligated to disclose their financials in family law property proceedings, if a former partner is unaware of just how much super they have, or they have multiple superannuation funds, they may be underreporting the total superannuation assets. Whether this is done intentionally or unknowingly, the result is that they fail to combine their superannuation assets into one fund, at the detriment to the other party.
Once the ATO has responded to the request by providing information related to the superannuation asset, to ensure that the information is accurate and current, a party can also complete the Superannuation Information Request Form, or the Form 6 declaration, and submit this to the relevant superannuation fund provider.
Parties must be aware that in order for a superannuation fund to be split, there must be an order from the FCFCOA, where the parties enter into a Binding Financial Agreement. In our experience, and in most cases, the split funds are moved to the receiving spouse’s superannuation account, where they must remain until they satisfy a condition of release, such as by reaching the right age.
Our dedicated Family Lawyers specialise in all areas of family law, including separation and divorce, property settlements, binding financial agreements, parenting disputes, child custody, child support, and spousal maintenance.
We help client’s realise their rights and protect their entitlements when they separate from their former partner.
To discuss our family law services, contact one of our Family Lawyers today for your free no obligation consultation, on (03) 8376 6209, or email info@excutivelawyers.com.au.