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 ‘Visibility 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:
- The name of the super fund and the identity of the owner.
- The Super Fund ABN and Unique Superannuation Identifier.
- 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.
Once you have received the relevant information from the ATO about the superannuation funds held by your former partner or spouse, it is also recommended to complete the Superannuation Information Request Form, or the Form 6 declaration and submit it to the superfund so that you can be assured that you have both a current and up-to-date valuation for all of the superannuation assets in question.
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.
If you are party to a family law proceeding, going through a divorce or separation or need assistance with superannuation assets or financial disclosure obligations, our experienced Sydney Family Lawyers are here to assist. Contact us on 02 9262 4003 for a confidential discussion or submit an online enquiry.
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.
Pamela is a member of Ivy Law Group’s prominent Family Law division. She specialises in parenting, property and divorce matters.
Pamela is a strong advocate for her clients and gains great satisfaction in helping them navigate through a difficult time in their lives and achieving an outcome that resolves their dispute to the highest standard.
