Superannuation in Family Law

Posted 3rd October 2018 by Dirk Klicker

This post is about obtaining information about the other party’s superannuation in family law. Superannuation has been a part of family law for a long time.

You can now split superannuation in Australia in all states and territories except, of course, in Western Australia in relation to de facto couples.  Hopefully that position will change soon.

Even if you are not splitting superannuation, you have to have some idea of the value of each of the parties’ superannuation.  It is important to be able to obtain an accurate value of the other party’s superannuation.

In Australia each party is supposed to provide a full and frank disclosure of their assets and liabilities.  This means that, upon request, each party should provide to the other a statement of the current balance of their superannuation.

The problem is that, from time to time, one of the parties will not comply with their obligation to provide a full and frank disclosure.  In fact, I see this all too often, particularly in the early stages and especially before the other has party obtained legal advice.  You tend to find that once the other party has obtained legal advice they are more forthcoming in providing information, such as their superannuation.

People often feel when they get a request from their former spouse to provide disclosure, that they are not required or bound to do so.  Parties often do not know about the obligation to provide full disclosure.  Under normal circumstances, if someone requests a copy of your superannuation you can obviously tell them where to go, so to speak.  However, in terms of family law, those privacy rules are overridden and parties are supposed to provide each other with a statement of their superannuation as soon as possible.

There are many reasons why a party will refuse to provide disclosure.  Firstly, the other party may be plainly unreasonable.  Secondly, the other party may not understand their legal obligations.  Additionally, the other party may be trying to be difficult and may simply not want to split their superannuation.  There are many reasons why a party may refuse to provide their superannuation statement but this is more of an issue in the early stages of negotiations.

The first option you have is to get a lawyer to write the other party a letter.  Again, the other party might ignore that letter, which happens quite regularly.  The next course of action might be to commence court proceedings and bring an application to compel the other party to provide and disclose their current superannuation statement.  Such an application would be successful.  However, there are 2 downsides to bringing such an application.

Firstly, to bring the application you will probably incur significant legal costs and although you will be successful, you may or may not recover some of those costs from the other party because the starting point in family law is that each of the parties pay their own legal costs.  The second downside is that, although that application will be successful, there will be some delay between the filing of the application and the Court hearing, so it is not an ideal solution.

The better option and a lower cost option is to complete a request for information in relation superannuation.  This form is available from the Family Court of Western Australia’s website.  It is a simple matter of completing the details in the form and then submitting it to the trustee of the other party’s superannuation fund.  Upon receipt of the request for information, the superannuation fund is obligated to provide the requesting spouse with the information in relation to the superannuation including a valuation of the member’s superannuation benefits.  There will be a small fee payable which varies from fund to fund.  You can usually find out what that the fees are on the superannuation fund’s website or by giving them a call.

The usual time for compliance for the superannuation fund is 28 days, so it is a low cost, efficient and timely way to obtain information about the other party’s superannuation.  The only downside is that you have to have some idea of the superannuation fund that the other party is a member of because you have to submit the Form 6 to the specific superannuation fund.  As there are so many superannuation funds in Australia, you cannot randomly send out form 6s to each of these funds.  You have to have an idea of which superannuation fund the other party is a member. That is really the only sticking point to using a request for superannuation form.

On occasions a client will come in and they will not have any idea which superannuation fund the other party is a member of.  This creates real difficulties if the other party is being difficult.  In such cases, of course, the only option is to bring a court application.  If you know which superannuation fund is involved, it is a simple matter of completing and submitting the form 6.

The Family Court of Western Australia website also has a kit on how to complete and submit the forms.  It is a very simple, less costly and more efficient way to obtain information about the other party’s superannuation