Splitting laws
The package of superannuation splitting laws is made up of the following:
Part VIIIB of the Family Law Act 1975, setting out rules for the payment splitting of a superannuation interest by agreements and orders.
The Family Law (Superannuation) Regulations 2001 (FL Super Regulations) set out the methods of valuing superannuation interests, the way in which the payment split is to be put into effect and also the information that the trustees have to provide
Determinations made by the Australian Government Actuary each financial year under regulation 45D of the FL Super Regulations providing for the method to be used to calculate the interest rate for the adjustment of a base amount under Division 6.1A of the FL Super Regulations for the purpose of some payment splits of some interests under the superannuation splitting laws.
- Family Law (Superannuation) (Interest Rate for Adjustment Period) Determination 2003
- Family Law (Superannuation) (Interest Rate for Adjustment Period) Determination 2004
- Family Law (Superannuation) (Interest Rate for Adjustment Period) Determination 2005
- Family Law (Superannuation) (Interest Rate for Adjustment Period) Determination 2006
Part 7A of the Superannuation Industry (Supervision) Regulations ('SIS Regulations') which set out the circumstances in which a new interest can be created for the non-member spouse in funds regulated by Commonwealth superannuation laws.
- Part 7A of the Superannuation Industry (Supervision) Regulations 1994 - PDF 187KB
The Family Law Legislation Amendment (Superannuation) (Consequential Provisions) Act 2001 (2001 Consequential Act) deals with tax issues arising from the splitting of a superannuation interest
- Family Law Legislation Amendment (Superannuation) (Consequential Provisions) Act 2001 PDF 76.7KB
The Family Law Legislation Amendment (Superannuation) (Consequential Provisions) Act 2002 (2002 Consequential Act) makes amendments to relevant social security and veterans' affairs legislation to ensure the appropriate treatment of income streams is applied when a superannuation interest is subject to a payment split
- Family Law Legislation Amendment (Superannuation) (Consequential Provisions) Act 2002 81.2 KB
It is important to remember that the context of the superannuation splitting laws is that superannuation splitting, whether by agreement or court order, is an added part of the existing property settlement regime under the Family Law Act 1975 (Family Law Act).
Property Settlement
The property settlement regime of the Family Law Act is explained on the Family Court's website.
Because the superannuation splitting laws are part of the existing property settlement regime, this means that:
- ALL superannuation is taken into account, regardless of when it was acquired
- There is NO automatic 50/50 division of superannuation interests
- There is a broad discretion in the court to make an order that is just and equitable
- You may recall that the 1998 Government position paper Superannuation and Family Law outlined a proposed regime in which:
only superannuation that had been accumulated during the course of the marriage would be taken into account
there would be a starting point of a 50/50 split.
It is important to remember that the superannuation splitting laws DO NOT implement the position outlined in that paper.
