By Alexandra Moles, Partner and Rachael Murray, Partner
Over two years in the making, the Federal Government has released the exposure draft for amendments to the Family Law Act 1975 (Cth) which are set to simplify and streamline the process of disclosing superannuation balances between parties to property proceedings in the Family Court of Australia, Federal Circuit Court of Australia and Family Court of Western Australia. The amendments seek to overcome the attempts by some litigants to hide or misrepresent their superannuation balance during disclosure in order to minimise the impact of a superannuation splitting order sought under s 90XT of the Family Law Act.
The current method of determining a former partner’s superannuation where a superannuation splitting order is sought is by completing a Form 6 Declaration and a Superannuation Request Form, pursuant to s 90XZB of the Family Law Act. The declaration and request form require the requesting party to know the name of the former partner’s superannuation fund. This form and declaration as well as a fee are then provided to the Trustee of the former partner’s superannuation fund, who will release information regarding the balance of the former partner’s superannuation interest.
The key issue with this process is that some parties were not aware of the name of their former partner’s superannuation fund or their former partner changed superannuation funds in order to avoid their balance being requested. Searching for the names of the relevant superannuation funds can be an expensive and time-consuming endeavour. This disadvantage was highlighted in recent inquiries by the House of Representatives’ Standing Committee on Social Policy and Legal Affairs and Women’s Legal Service Victoria.
The new s 90XZJ of the Family Law Act will not replace the current procedures under s 90XZB of the Family Law Act, rather it provides a simple and efficient method of sourcing the names of all superannuation funds in which the opposing party has an interest so that the necessary requests can be made. Section 90XZJ of the Family Law Act will allow parties to apply using an approved form to the Registry Manager or Principal Registrar and request the superannuation information of the other party, particularly the name of the former partner’s superannuation fund. From there, the Registry official will request the Commissioner of Taxation to disclose the information to the parties and their lawyers. Corresponding amendments will be made to the Taxation Administration Act 1953 (Cth) Schedule 1 subsection 355-65(3) to enable the Australian Tax Office to disclose the necessary information. We note that there is no timeframe in which the information is required to be disclosed upon application.
These amendments will benefit all parties to family law proceedings to enable efficiency, fairness and justice in property disputes where superannuation is a key asset. Particularly, it will lessen the financial disadvantage experienced by women who are more likely to suffer as a result of inaccurate superannuation disclosure.
Submissions for consultation on the exposure draft are currently open, with the legislation hoped to pass later this year.