Divorce is rarely straightforward, and the division of superannuation assets can be particularly complex. In Australia, superannuation - just like other assets such as houses, cars, or savings - is treated as property in divorce proceedings. This means it's subject to division between separating couples.
The complexities surrounding superannuation have historically made it difficult to ensure a fair split, particularly for women who often have lower superannuation balances due to career breaks and lower-paying jobs.
Recent legislative changes have sought to address this issue by increasing transparency and making it harder to hide superannuation assets during divorce.
Here’s a rundown of how superannuation is divided in Australia following a relationship breakdown.
Superannuation is treated as property
Australian family law treats superannuation as an asset that forms part of the 'property pool' during divorce proceedings. This pool includes all assets acquired during the relationship, regardless of whose name they are held in. The court aims to achieve a just and equitable division of this property pool, considering various factors such as:
- Contributions: Both financial and non-financial contributions to the relationship are considered, including caring for children, homemaking, and supporting a partner's career.
- Future needs: The court takes into account the future needs of each party, including their age, health, earning capacity, and caring responsibilities.
- Length of the relationship: The duration of the relationship influences how the assets are divided.
Options for splitting superannuation
Separating couples have a few options when it comes to dividing superannuation:
- Financial agreement: Couples can enter into a financial agreement outlining how their superannuation will be split. This requires both parties to receive independent legal advice and have their lawyers sign a certificate confirming this.
- Consent orders: Couples can apply to the court for consent orders that formalise their agreement on superannuation splitting.
- Court orders: If an agreement cannot be reached, the court will make orders determining how the superannuation will be divided.
What happens when a former partner hides superannuation?
In the past, it was possible for individuals to conceal superannuation assets, making it difficult to achieve a fair division during divorce. However, the Treasury Laws Amendment (2021 Measure No. 6) Bill 2021 (Schedule 5), effective from 1 April 2022, has significantly changed the landscape.
This legislation empowers the Australian Taxation Office (ATO) to release superannuation information to family law courts upon request. This means that individuals can no longer easily hide their superannuation from their former partner during divorce proceedings.
To obtain superannuation information about their former partner, an individual needs to apply to a family law court registry pursuant to rule 90XZJ of the Family Law Act 1975 (Cth). This process is relatively straightforward, requiring the completion of a Superannuation Information Request Form available online through the Commonwealth Courts Portal.
The legislation offers several key benefits:
- Transparency: It promotes transparency and fairness by ensuring both parties have a clear picture of their superannuation assets.
- Efficiency: It simplifies the process of obtaining superannuation information, reducing the time and cost involved.
- Equity: It helps to ensure a more equitable division of superannuation, particularly for women who may be at a financial disadvantage.
If you suspect your former partner is hiding superannuation assets, it's crucial to seek legal advice. A family lawyer can help you navigate the process of obtaining information and ensure you receive your rightful share of the superannuation.
Further reading: Life After Divorce
Key takeaways
Superannuation is considered property in Australian divorce proceedings and is subject to division between separating couples. The recent legislative changes have made it easier to access superannuation information from a former partner, promoting transparency and fairness, and ensuring that superannuation assets aren’t concealed during the property division process.
If you are going through a divorce, it's essential to seek legal advice to understand your rights and ensure a just and equitable division of assets, including superannuation.
