This article will outline miscellaneous provisions for superannuation interests under the Family Law Act 1975. Let’s first define superannuation interests in the context of family law. Superannuation interests refer to the accumulated funds and benefits in a person’s superannuation account or pension scheme.
Superannuation is a form of retirement savings in Australia, and it is often one of the most valuable assets that individuals possess. During divorce or separation proceedings, superannuation interests are a part of the overall property settlement between the parties. The Family Law Act allows for the division of superannuation assets between separating spouses or de facto partners.
The court has the authority to make orders regarding the division of superannuation interests. This includes splitting the superannuation benefits between the parties. This means that the value of the superannuation interests can be divided, either by:
- A payment from one party’s superannuation fund to the other party’s fund; or
- Creating a separate superannuation interest for the benefit of the non-member spouse
Read on to know more about miscellaneous provisions for superannuation interests.
Section 90XO: Limitation on Section 79 or 90SM Order
Section 90XO of miscellaneous provisions for superannuation interests refers to certain limitations on the court’s ability to make orders. These orders are related to superannuation interests under sections 79 and 90SM of the Family Law Act 1975. Below is a breakdown of each subsection.
Miscellaneous Provisions For Superannuation Interests: Section 90XO (Subsection 1)
This subsection states that the court cannot make an order under sections 79 or 90SM concerning a superannuation interest if one of the following conditions is met:
1. The superannuation interest is covered by a superannuation agreement that is currently in force. A superannuation agreement is a legal agreement between the parties that outlines how their superannuation interests will be dealt with in the event of separation or divorce.
2. The non-member spouse (the spouse who does not hold the superannuation interest) has served a waiver notice on the trustee. This means that the non-member spouse has waived their right to claim a share of the superannuation interest.
3. A payment flag is operating on the superannuation interest. This is a mechanism that temporarily prevents the payment or withdrawal of superannuation benefits from a particular account. It is typically used to safeguard the superannuation interests during family law proceedings.
Note: It is important to mention that section 90XM states that the court does have the power to terminate the operation of a payment flag in certain circumstances. This allows the superannuation interest to be accessed or divided.
Miscellaneous Provisions For Superannuation Interests: Section 90XO (Subsection 2)
Subsection (2) states that Subsection (1) of Section 90XO cannot prevent the court from taking superannuation interests into consideration when making any property orders. In other words, the court can consider the value of superannuation interests when making orders about other property. This allows the court to include superannuation interests in the overall property settlement.
The court can make appropriate orders concerning other assets of the spouse or property owned. In summary, courts can consider superannuation interests in the broader property settlement process.
Sectio 90XP: Separation Declaration
Section 90XP outlines the requirements for a separation declaration in the context of both married and de facto relationships:
|For married spouses||For de facto spouses|
|1. If section 90XQ applies, the declaration must state that the spouses:|
– Are married
– Have lived separately for at least 12 months; and
– Have no reasonable likelihood of cohabitation being resumed.
If section 90XQ does not apply, the declaration must state that the spouses are married but separated at the time of the declaration.
If one or both spouses have died, the declaration must indicate their marital status and the period of separation before their death.
|If section 90XQ applies, the declaration must state that the spouses lived in a de facto relationship have lived separately for at least 12 months, and there is no reasonable likelihood of cohabitation being resumed.|
If section 90XQ does not apply, the declaration must state that the spouses lived in a de facto relationship but are separated at the time of the declaration.
If one or both spouses have died, the declaration must indicate their de facto relationship and the period of separation before their death.
Moreover, Section 90XP also states that the determination of whether spouses have lived separately and apart for the required period is made in the same way as under Section 48. The section also specifies that certain circumstances, such as living in the same residence or providing household services, do not negate the separation.
If spouses temporarily resume cohabitation but separate again within three months, the periods of separation before and after the period of cohabitation can be aggregated as one continuous period, excluding the period of cohabitation itself.
Section 90XQ: Superannuation Interests in Excess of Low Rate Cap Amount
Section 90XQ of miscellaneous provisions for superannuation interests pertains to situations where the total withdrawal value of a member spouse’s superannuation interests exceeds their low rate cap amount. Here’s a breakdown of its key points:
1. The section applies to a declaration made either at the current declaration time when both spouses are alive or, if applicable, at the most recent time when both spouses were alive.
2. It applies when the total withdrawal value of all the member spouse’s superannuation interests exceeds their low rate cap amount for the specific income year.
3. The section may not apply in certain circumstances as prescribed by the regulations.
4. The term “low rate cap amount” is defined as per the Income Tax Assessment Act 1997, excluding specific subsections and transitional provisions.
5. The “total withdrawal value” refers to the amount determined in accordance with the relevant regulations.
Section 90XR: Enforcement by Court Order
Section 90XR of miscellaneous provisions for superannuation interests outlines the powers and considerations of the court regarding the enforcement and validity of payment splits and payment flags under the relevant division. Here’s an explanation of its key points:
1. The court has the authority to issue orders that it deems necessary to enforce a payment split or payment flag as outlined in this Division.
2. The validity, enforceability, and effectiveness of a superannuation agreement or flag-lifting agreement are subject to the court’s determination. The court will base its determination on the principles of law and equity applicable to contracts and purported contracts.
3. In proceedings concerning a superannuation agreement or flag-lifting agreement, the court:
- Possesses the same powers
- Can grant similar remedies; and
- Must consider the rights of third parties in the same manner as the High Court would in proceedings relating to contracts or purported contracts falling within its original jurisdiction.
Importance of Seeking Legal Advice
Legal advice can play a crucial role for individuals involved in matters related to superannuation interests. We at JB Solicitors can explain relevant laws, regulations, and case precedents. Our lawyers can also help with negotiations and agreements related to superannuation interests.
We have mediation and arbitration services for parties who want to come to an amicable resolution. Message us today for more information about miscellaneous provisions for superannuation interests.