This article will discuss the scope of superannuation interests provisions (Part VIIIB of the Family Law Act 1975). During a divorce, it becomes necessary to address the distribution of superannuation assets between the parties involved. Superannuation interests are the accumulated funds within a person’s superannuation account.
These funds are contributed by individuals and their employers throughout their working lives to ensure financial security during retirement.
When a marriage or de facto relationship breaks down, the division of assets is an essential component of the divorce process. Superannuation interests are no exception. The law recognises that both parties have a claim to each other’s superannuation funds. Superannuation interests are part of the overall property pool to be divided during property settlement.
Superannuation interests can include contributions from both parties to a marriage or de facto relationship. They are valuable assets that must parties must consider during divorce proceedings.
Read on to know more about the scope of superannuation interests provisions.
Section 90XA: The Object of Scope of Superannuation Interests Provisions
Section 90XA refers to the objective of a specific part of legislation related to superannuation interests and divorce. The purpose of this part is to provide a mechanism for allocating certain payments, known as splittable payments. These payments:
- Are associated with a person’s superannuation interest
- Can be allocated between the parties involved in a marriage or de facto relationship.
The allocation can be done either through a mutual agreement reached between the parties or through a court order. The aim is to establish a framework that allows for the fair distribution of superannuation assets in the context of a marital or de facto breakdown.
How to Achieve Fair Distribution of Superannuation Assets?
1. Gather Information: Obtain comprehensive information about each party’s superannuation interests. This includes statements of account balances and contributions made during the relationship.
2. Consider Contributions: Assess the financial and non-financial contributions made by each party to their superannuation accounts during the relationship. Contributions as a homemaker or caregiver are also taken into account.
3. Future Needs: Consider the future needs of each party, taking into account factors such as age, health, earning capacity, and care responsibilities for children.
4. Negotiate and Reach an Agreement: Engage in negotiations with the other party to reach a fair and mutually acceptable agreement on the division of superannuation assets. Seeking legal advice during this process is crucial to ensure that you protect your rights.
5. Formalise the Agreement: Once parties reach an agreement, it is essential to formalise the division of superannuation assets. They can do this through Consent Orders or a Binding Financial Agreement. In some cases, if the parties cannot reach an agreement through negotiation, it may be necessary to seek a court order. A court order will set out how to divide the superannuation assets of the disputed couple. The court will consider various factors to determine a fair and equitable distribution.
Section 90XB: Scope of Superannuation Interests Provisions Overrides Other Laws, Trusts Deeds, Etc.
Section 90XB states that the scope of superannuation interests provisions overrides other laws, trust deeds or any conflicting instruments. Here’s a breakdown of what each subsection means:
1. Effectiveness Despite Contrary Instruments: This subsection establishes that the provisions in this part of the legislation remain in effect. This is the case regardless of anything stated in other laws, whether at the Commonwealth, State, or Territory level, as well as any provisions within trust deeds or other instruments.
2. Compliance and Contravention: Any actions taken by the trustee of an eligible superannuation plan in accordance with the provisions outlined in this Part should not be considered a violation or breach of any laws or instruments mentioned in subsection 1.
3. Subject to Superannuation (Unclaimed Money and Lost Members) Act 1999: This subsection indicates that the effectiveness of this part of the legislation is subject to the Superannuation (Unclaimed Money and Lost Members) Act 1999. The Act sets out the requirements and procedures for identifying, reporting, and transferring unclaimed superannuation money to the Australian Taxation Office (ATO).
Section 90XC: Extended Meanings of Matrimonial Cause and De Facto Financial Cause
Section 90XC provides the extended meaning of matrimonial cause and de facto financial cause.
De Facto Financial Cause
According to Section 90XC scope of superannuation interests provisions, this term refers to legal proceedings concerning financial matters after a de facto relationship breakdown. This includes maintenance proceedings for:
- Financial support;
- Property distribution proceedings;
- Proceedings involving bankruptcy trustees;
- Proceedings related to financial agreements; and
- Other proceedings related to concurrent or completed cases.
Matrimonial Cause
According to Section 90XC scope of superannuation interests provisions, the term “matrimonial cause” refers to a range of legal proceedings related to marriages. It includes proceedings for:
- Divorce;
- Nullity of marriage;
- Declarations of validity of divorce and nullity of marriages;
- Maintenance (financial support);
- Property disputes;
- Enforcement of agreements and more;
- Bankruptcy trustees;
- Legal personal representatives; and
- Various aspects of the marital relationship.
How Can Family Lawyers Help?
Family lawyers can help with matters related to the scope of superannuation interests provisions. Family lawyers specialise in areas of law that pertain to family and relationship matters. This includes divorce, property division, spousal maintenance, and financial settlements.
In the context of superannuation interests and divorce, a family lawyer can provide guidance on how to divide. They can assist in assessing the value of superannuation interests. Family lawyers also understand the applicable laws and regulations and determine a fair and equitable distribution of these assets.
Importance of Seeking Legal Advice
JB Solicitors has expertise and experience in family law. We can provide invaluable guidance tailored to parties’ needs regardless if they are de facto partners or married couples. We at JB Solicitors can gain a comprehensive understanding of their legal rights and obligations. This way, our clients can make informed decisions throughout the process.
The firm’s skilled lawyers can navigate the intricate legal landscape, assist in negotiating fair settlements, and provide strong advocacy. Our clients can trust that we will protect their interests. Clients will receive the professional support necessary to achieve a favourable outcome. We have mediation and arbitration services for family law matters.
Contact us today for more information about the scope of superannuation interests provisions.
