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Superannuation Splitting Laws
The Family Law Legislation Amendment (Superannuation) Act 2001 (FL Super Act) provides for the payment splitting of a superannuation interest. Under the superannuation splitting laws, superannuation interests are treated as property for the purposes of property settlement on marriage breakdown. This means that people are able to make an agreement - known as a superannuation agreement - about how any superannuation interests that either party has are to be split in the event of marriage breakdown.
A superannuation agreement is like a more general financial agreement in which people can agree about how property other than superannuation is to be divided on marriage breakdown. However, because superannuation interests are different to other property, there are special rules about what a superannuation agreement has to say.
Provided that a superannuation agreement complies with the legal requirements detailed in the superannuation splitting laws, the agreement is binding. If a superannuation agreement is binding, then:
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the trustee of a superannuation fund is required by law to implement it; and
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the Court is not able to make an order about the superannuation interest that is dealt with in the superannuation agreement.
If people are unable to agree, then:
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the Court is able to make an order, as part of a property settlement order, about how any superannuation interests are to be split; and
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the Court order is binding on the trustee of a superannuation fund, who has to comply with it, provided that the legal requirements have been complied with.
Do the superannuation splitting laws apply to me?
The superannuation splitting laws apply to people who were married and who have divorced. They also apply to people who are still married but who have separated and want to finalise arrangements about their property. They apply regardless of whether people have divorced or separated before the superannuation splitting laws commenced on 28 December 2002 - provided that final arrangements have not been made for their property settlement.
The superannuation splitting laws also allow people to enter agreements, either before or during marriage or after separation, about how, in the event of marriage breakdown, superannuation interests are to be split. People are able to enter into a superannuation agreement before they marry, but the agreement does not have any effect if the parties don't, in fact, get married. In these circumstances State law would apply.
If you have legally finalised your property arrangements before the superannuation splitting laws commence on 28 December 2002 then, generally, the superannuation splitting laws won't apply to you. However, if there has been no formal legal arrangement about your property - perhaps because you have made an informal arrangement with your former partner, then the superannuation splitting laws do apply to you.
Also, if your property arrangements have been legally finalised but those legal arrangements are subsequently overturned after the superannuation splitting laws commence, then the superannuation splitting laws apply to you.
Provided By Aussie Legal. |