superannuation which was not treated before as property could not be split either by court order or agreement.
It was considered as a “financial resource” under the previous law. In ordering property settlement, the Court under the previous law can take into account the interest but cannot make an order splitting the interest.
The new Superannuation Splitting laws take effect on December 28, 2002 which is the Family Law Legislation Amendment (Superannuation) Act 2001 which now allows the splitting of superannuation interest. Under this new law, superannuation interest is treated as property for the purposes of property settlement during divorce or separation.
This new law allows the parties to stipulate in an agreement how they are going to split any superannuation interest which either has during their divorce or separation. This is known as superannuation agreement which is like more of a general financial agreement which couples entered into or execute to be the basis in dividing their assets during marriage breakdown. But superannuation agreement has different rules compared to general financial agreement.
Under the new law, it applies to all marriages including those marriages that were dissolved before the start up time except to marriages where an order was made pursuant to section 79 of the Family Law Act or when there was agreement approved under section 87 of the Family Law Act.
However, if the order under section 79 of the Family Law Act was later nullified or set aside, then the new Superannuation law applies to that marriage. The same rule applies to marriages with agreements made or approved under Section 87 of the Family Act and which order for approval was later revoked.
When the superannuation agreement complied with the legal requirements provided by the new superannuation splitting laws, then it is binding. When the same is declared valid and binding, then the trustee of the superannuation fund is required to implement it. Under the new law, trustee is allowed to charge reasonable fees in connection with payment split or in relation to superannuation interest.
If after the operative date for payment split a non-member spouse dies, the payment spilt continues to operate in favor of the legal personal representative of the deceased spouse and the same is binding on that named legal representative and shall enjoy all the right the decedent spouse has including the waiver of notice under 90MZA of the new law.
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Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.