Superannuation information sharing by the ATO in Family Law proceedings from 1 April 2022

From 1 April 2022, parties in family law matters will have the ability to approach the Federal Circuit and Family Court of Australia to obtain information of a party’s superannuation interest from the Australia Taxation Office and shared to the Federal Circuit and Family Court of Australia in the event of non-disclosure.

This is a significant development in tackling the problems that can and do arise as to the visibility of parties’ property in family law matters.  In family law matters, parties are required to disclose information about their superannuation to each other to help them reach agreement, and to the family law courts to allow the family law courts to reach a decision, about a just and equitable division of their property.

The amendments that are set out in Schedule 5 of Treasury Laws Amendment (2021 Measures No 6) Bill, 2021) amend the Family Law Act 1975 and the Taxation Administration Act 1953.

Superannuation is quite often the largest item of property behind a couple’s residence, and it is well known that superannuation can disproportionately disadvantage the primary carer in the family law matters.  It is also well known that those experiencing family violence are often forced to engage in time-consuming and expensive disclosure exercises to obtain production of financial documents, such as superannuation member balances, including going to such lengths as using subpoenas.

As noted in the Explanatory Memorandum, “The amendments will support more separated couples to divide their property, including superannuation, on a just and equitable basis, and help to alleviate the financial hardship and unequal retirement income outcomes that people, particularly women, can experience after separation.”

What information can be made available?

Upon application by a party to a Registry of the Federal Circuit and Family Court of Australia, the Registry may request the following information from the Australian Taxation Office:

1. The identity and value of:

(a) Each superannuation interest held by the person most recently reported to the Commissioner;

(b) Any account in the person’s name containing small amounts of ATO-held superannuation;

2. Any amounts of:

(a) Unclaimed superannuation (such as amounts in lost member and inactive low balance accounts);

(b) Shortfall components; and

(c) Government co-contributions for low income earners;

Payable to the person, or for the benefits of the person.

Who can apply?

In terms of who may make an application through a Registry:

1. Only a current or former spouse/de facto partner of the other party to permitted family law proceedings may apply for the Registries to request superannuation information from the Commissioner. It is expected that the approved form will require the person to declare this relationship when applying for this information; and
2. Registries may only request superannuation information on application of a party if it is to be used for permitted family law proceedings.

Requests for the information cannot be made directly to the Australian Taxation Office.

If your require assistance in relation to your family law property settlement, our Family & Relationship Law team is here to help you navigate difficult issues during these difficult and unprecedented times.