SUPERANNUATION DISCLOSURE IN PROPERTY MATTERS

Aside from real property and managed investments, the superannuation entitlements of parties are likely to be the significant asset of a marriage or relationship. When parties separate and resolve property settlement arrangements, the superannuation interests of the parties are likely to be divided.

Parties seeking superannuation information about the other party may submit a Form 6 Declaration and Superannuation Form to the Trustee of their former partner’s superannuation fund. The Trustee of the superannuation fund upon receiving a correctly completed request will release information of the member’s entitlement including the balance at the requested date.

The process poses some limitations. Information cannot be made available if a party is unaware of their former partner’s superannuation fund or where a former partner intentionally changes funds to hide their superannuation interests.

Recently, legislation was passed to improve the transparency of superannuation interests in family law proceedings. From 1 April 2022, the process of disclosing superannuation interests between parties in family law property proceedings has been simplified. This new process provides for better accessibility of superannuation information and prevents parties from fraudulently misrepresenting their true superannuation position.

Parties to family law property proceedings are now able to request the Federal Circuit and Family Court Registrar to obtain the details of the other party’s superannuation accounts direct from the Australian Taxation Office. The requesting party is then at liberty to obtain information direct from any relevant superannuation funds in accordance with the Form 6 and superannuation information process to obtain up-to-date balances as the ATO records may be historical.

Superannuation interests form only one of the assets that is considered in the division of property between separated couples. Advice from an experienced family lawyer should be sought to understand the full entitlement of a spouse or de facto partner upon separation and whether a superannuation split is an appropriate option.

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