For many Australians, superannuation is their

second biggest asset aside from the family home.

In a divorce situation, it’s important that both

partners, including those with lower superannuation

balances who may have taken time out of the

workforce to care for children, get their fair share of

available super.

In the case of an amicable divorce where both partners

are being open and honest, splitting super is relatively

straightforward. Yet it can be much harder to split when

there is animosity between the divorcing couple, family

law proceedings are occurring, and one partner is

being dishonest or evasive about how much super they

have.

The new law — contained in the Treasury Laws

Amendment (2021 Measure No. 6) Bill 2021 that

received Royal Assent on 13 September — provides an

information sharing mechanism between court registries

and the ATO to improve the visibility of superannuation

assets.

How the new law works

From 1 April 2022, divorcing couples can apply to the

registries of the Family Court of Australia, the Federal

Circuit Court of Australia and Family Court of Western

Australia to request superannuation information about

their former partner that is held by the ATO. The

requesting registry can then provide this information to

the parties or to their lawyers.

Access to this vital information will allow parties to

family law proceedings to properly identify their partner’s

superannuation and, ultimately, divide this asset on a

just and equitable basis. It will also reduce time in court

and the costs and complexity involved with seeking this

information.

This measure, which was originally announced as part

of the government’s 2018 Women economic security

statement, was designed specifically to alleviate the

financial hardship that is often felt by partners who

experience significant drops in disposable income after

divorce, in particular women and domestic and family

violence victims.

The new law also sets out measures to protect the

superannuation information requested from the ATO

from being accessed by unauthorised parties. This

means that this information can only be used for the

purpose of permitted family law proceedings (ie, for the

subject matter of the dispute before the court or the

conciliation proceedings leading up to a determination of

that matter before the court).

Research has shown that couples who are divorcing

tend to have low levels of awareness about their own

superannuation entitlements, and even less so about

their spouse’s super. This makes the new legislation a

step in the right direction that would make it harder for

parties to hide or under-disclose their superannuation

assets in family law proceedings.

The CEO of the Association of Superannuation Funds of

Australia, Dr Martin Fahy, congratulated the government

on bringing forward this legislation, saying:

“ The ability to split superannuation

on separation or divorce is one of the

most important measures to ensure

equity and fairness for parties who

have experienced the breakdown

of a relationship. We support the

implementation of any mechanism that

assists parties to be able to split their

super more easily and fairly.

The measures are particularly

important for vulnerable individuals

and will go some way to ensuring they

have a more secure long-term financial

future. ”