Superannuation and family law – Part 1

Posted on September 1st, 2014

Share on LinkedInTweet about this on TwitterEmail this to someoneShare on Google+Print this page

by Mark Sullivan

Mark Sullivan is a Director at Mullane & Lindsay in Newcastle and specialises in Family, Relationship and Matrimonial Law

Superannuation is treated as property for the purposes of jurisdiction for both matrimonial and de facto financial causes.   The Family Court and the Federal Circuit Court have jurisdiction under the Family Law Act to determine matters relating to a superannuation interest held by a member of an eligible superannuation plan.

S.79 empowers these courts to alter the interests that parties to proceedings have in relation to property and superannuation. Orders made under s.79 in relation to superannuation must be orders to split payments to a party with a superannuation interest; they do not split the underlying interest.   Trustees of superannuation funds are bound by payment splitting orders if they have been accorded procedural fairness to comment on the proposed orders before they are made.

It must be just and equitable to make an order splitting superannuation before a court determines it is proper to do so. If there are sufficient non superannuation assets available to achieve a just and equitable outcome in a property settlement it may not be necessary to split a party’s superannuation. If splitting orders are made they generally either allocate a base amount for payment to a non member spouse or prescribe a percentage amount to be split.

Superannuation entitlements are an important asset and resource of parties in relationships and the opportunity to make splitting orders as part of any property adjustment helps in achieving a fairer outcome following the breakdown of a relationship.

Mark Sullivan is a Director at Mullane & Lindsay, and practises extensively in Family, Relationship and Matrimonial Law. If you require any assistance in this area please contact Mark Sullivan to arrange a consultation or contact our Newcastle office.

Share on LinkedInTweet about this on TwitterEmail this to someoneShare on Google+Print this page