Superannuation assets to become more accessible in family law cases – Family and Matrimonial

Emily Parkin


Australia:

Superannuation assets to become more accessible in family law cases


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Gaining access to information regarding a former spouse
or partner’s superannuation assets in family law proceedings
has, in the past, been limited to reaching out to the relevant
superfund directly. This process was also heavily reliant on the
former spouse or partner being open and forthcoming about where
their super is held. However, all that is set to change with new
rules introduced on 1st April 2022 that allow greater sharing of
information regarding an individual’s superannuation assets
between the ATO and the Federal Circuit and Family Court of
Australia (FCFCOA). Here we explore what these changes are and what
it means for family law proceedings.

How are superannuation assets treated in family law
proceedings?

Many people are not aware that superannuation is an asset that
is considered part of the matrimonial pool and available for division
following a separation.

While financial disclosure is mandated in family law
proceedings, it is not uncommon for people to ‘hide’ their assets, including
superannuation, from their former partner or spouse, or be unaware
of just how much super they have. This can particularly be the case
where someone might have several different superannuation funds and
fails to combine their superannuation assets into one fund.

Prior to the new rules coming into effect, once your former
spouse provided you with the details of their
superannuation interest, the only way to obtain information
about their superannuation assets was to complete a
Superannuation Information Request Form and Form
6
declaration and provide this directly to the superannuation
fund. Given this was reliant on the former spouse being open and
forthcoming about their superannuation, if they failed to disclose,
it would be difficult and costly to determine the exact nature of
the assets they had.

What are the new changes that have been introduced?

The new system introduced on 1st April
2022
, widely known as the
sibility of Superannuation Law
,’ will
now make it easier for those in family law proceedings to gain
access to their former spouse or partner’s superannuation
assets.

Parties can now apply directly to the FCFCOA for
information relating to their former spouse’s superannuation
information. The FCFCOA will then obtain this information from the
ATO and provide it to all parties involved, including their family
lawyers, typically within 7 days of the request being made.

As is the nature of these types of requests, the more
information that you have available to you about your former spouse
or partner, the greater the likelihood that the information
provided by the ATO will be accurate and up-to-date.

If a super fund is located, the response from the ATO will
include:

  1. The name of the super fund and the identity of the owner.

  2. The Super Fund ABN and Unique Superannuation Identifier.

  3. The last reported balance and the date that this was
    reported.

In circumstances where the ATO does not hold superannuation
information for a specific person then a response indicating that
this is the case will still be provided.

As is usually the case with most information obtained for the
purpose of family law matters before the FCFCOA, the information
provided by the ATO cannot be dispersed to third parties and should
be utilised for the purposes of the family law proceedings
only.

What does this mean for parties to family law proceedings?

It is hoped that the new changes will mean greater transparency
in family law proceedings and
result in fairer and more just outcomes before the Court. It could
also save parties time and money normally spent trying to chase up
the assets.

The content of this article is intended as a general guide
to the subject matter. For specific legal advice about your
individual circumstances, please contact our experienced
lawyers.

The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.

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