The Super Splitting Laws

The Government has introduced a scheme to split superannuation on marriage separation.

It is a complex scheme involving the following laws:

• Family Law Legislation Amendment (Superannuation) Act 2001.
  
• Family Law (Superannuation) Regulations 2001.
  
• Superannuation Industry (Supervision) Amendment Regulations 2001 (No 3)
  
• Family Law Legislation Amendment (Superannuation) (Consequential Provisions) Act 2001.
  
• Retirement Savings Accounts Act 1997.
  
• Social Security Act 1991 and the Veterans' Entitlements Act 1986.

Outline of the Super Splitting Scheme

The Family Law Legislation Amendment (Superannuation) Act 2001 received Royal Assent on 28 June 2001. It is an important piece of legislation that has significant implications for a number of professional groups including family lawyers, superannuation lawyers, superannuation trustees and administrators, accountants and financial planners. Together with 5 other Acts of Parliament and regulations, they form the new super splitting laws. It is vital that the scheme be well understood by all professionals so that proper advice can be given to clients about the complex requirements to be observed.

The super splitting laws will give courts exercising jurisdiction (the Family Court of Australia, the Family Court of Western Australia, the Federal Magistrates Court and local Magistrates courts) the power to make a splitting order. The effect of the splitting order, under the Family Law Act 1975, will be that an amount of the member’s superannuation will be allocated to the non-member. The non-member will then be entitled to that amount, together with any interest earned, when the superannuation is paid to the member. Alternatively, under the Superannuation Industry (Supervision) Regulations, where the interest is in a regulated accumulation plan, the non-member is able have that amount allocated as a new interest or rolled out to another fund. The choices here are time specific and also depend on the governing rules of the superannuation plan. Professional legal advice is recommended.

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