With superannuation becoming an increasingly significant portion of many property pools, it is often the case that until a party has an idea of the balance of their partner’s superannuation interest they find themselves hamstrung when it comes to forward planning their separation. Fortunately, where a superannuation interest is:
- a superannuation fund within the meaning of the Superannuation Industry (Supervision) Act 1993;
- an approved deposit fund;
- a retirement savings account;
- an account within the meaning of the Small Superannuation Accounts Act 1995; or
- an eligible annuity,
then an “eligible person” may apply to the Trustee of that superannuation fund (or RSA or eligible annuity provider) for information about that superannuation interest. This is done by serving the Trustee with a Superannuation Information Request Form and accompanying Form 6 Declaration. Section 90XZB(3) of the Family Law Act 1975 sets out that if the Trustee of that fund receives an Application which otherwise complies with the legislative requirements, the Trustee must provide information about the superannuation interest to the applicant.
An “eligible person” is defined at Section 90XZB(8) of the Family Law Act 1975 and includes the following:
- The member of the eligible superannuation plan;
- If the member is deceased, the legal personal representative of the member;
- A spouse of the member;
- If a spouse of the member has died, the legal personal representative of the spouse; or
- A person who intends to enter into a superannuation agreement with the member.
At Section 90XD of the Family Law Act 1975, “spouse” is defined as both a party to a marriage or a party to a de facto relationship.
In summary, if you find yourself separated and unable to start negotiating a property settlement until you know what your spouse’s superannuation balance is, the next best option is generally going to be serving the Trustee with a Superannuation Information Request Form and accompanying Form 6 Declaration.
Should proceedings already be on foot, it is then available to parties to a proceeding to apply directly through the Court’s online court portal for an Australian Taxation Office Superannuation Request. By lodging this request, the Australian Taxation Office will then provide to the Court the requested parties’ superannuation information for all interests held in that parties’ name, with a turnaround time of between three to seven days.
If you would like to discuss any questions you may have in relation to taking this step, please contact our office to make an appointment.
