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Superannuation Interest in family law matters

Superannuation Interests in Family Law Matters

Tuesday 29th of March 2022
By: Bonnie Chipp, Associate, Coote Family Lawyers

It was one of the most difficult things I've had to do and you were right there with me providing intelligent and clear advice even at times when I felt like it was all going out of control.

I don't think my former partner is disclosing all of their superannuation interests.  What can I do?

It is important that you are aware of the entire asset pool when you are negotiating a property division, so that you can receive accurate legal advice and make informed decisions in relation to your entitlements.

Ask for a Statement

When separated parties are negotiating a property settlement, each party has a duty to provide full and frank disclosure of any and all relevant documents which are in their power, possession or control evidencing their financial circumstances. If a party refuses to comply with their obligations, and court proceedings are issued, the Court will make Orders to compel them to do so.

Many clients ask, “how do I, or how does the Court know, if my partner has not disclosed something?”. This is particularly so in relation to superannuation. Apart from a yearly statement, there is often little tangible evidence that it exists.  In some cases, an honest mistake is made where a party has simply forgotten that they had an interest in a particular Fund, or have “lost” super.

If you know the name of the Fund/s

If you know your partner has an interest in any particular superannuation fund, you can complete a “Superannuation Information Request Form” which is sent to a specific superannuation fund to request details of the entitlements in that Fund.

To make this request, you must be an eligible person and have an accepted reason for requesting the information. An eligible person includes the member, the spouse of a member or any person who intends to enter into a superannuation agreement with the member. An accepted reason includes negotiating a superannuation agreement or engaging in Family Court proceedings.

These requests can seek the member’s current balance and also the balance at a certain point in time, for example, at the commencement of the relationship. Some funds do charge a fee for this service. When a client is unsure what superannuation fund their former partner may have an interest in, ascertaining their interest can be more challenging.

How do I find out the name of the Fund/s?

Another option to consider is issuing a subpoena to your former partner’s current and/or former employer. In order to do this, Court proceedings must already be commenced.

Changes from 1 April 2022

In September 2021, The Treasury Laws Amendment (2021 Measure No 6) Bill 2021 (Schedule 5) was passed. This legislation permits the Australian Taxation Office to release superannuation information to the Federal Circuit and Family Court of Australia upon request. To do so, you will need to be either the former spouse or de facto partner of the member and there will need to be court proceedings already commenced. This service will be available to litigants from 1 April 2022. While the form required to make this request has not yet been released, it is expected to require parties to declare that they believe the other party has superannuation interests that have not been disclosed and that the information obtained will only be used for the purposes of the family law proceedings.

This reform will make the task of identifying a non-disclosed superannuation interest, easier, more cost effective and efficient.  

Superannuation Information Request Forms will continue to be a useful tool in the event the parties are wishing to negotiate a settlement without issuing a court application and seeking information in relation to entitlements at the commencement of the relationship.  

Coote Family Lawyers is regularly recognised as one of Melbourne's top family law firms.  Please call 9804 0035 to speak with us if you have any questions or concerns about your situation or the information in this article.

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