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Family Law and super

For an overview of Family Law and your Super select from the links below:

It is important that you read the disclaimer (anchor to section below ‘Note: This document contains general advice or information only’) at the end of this information sheet.

This information provides an overview only. For more detailed information on how Family Law splitting works in DFRDB you should refer to Family Law and Splitting Super—How It's Done and What Happens Next .

 Who should read this?

  • Any Member of the Defence Force Retirement Benefits (DFRB) Scheme, or the Defence Force Retirement and Death Benefits (DFRDB) Scheme and the Defence Force Productivity Benefits Sceheme, whether a contributor, Pension Recipient or preserved benefit Member, who
    • is in the process of divorcing or separating or
    • intends to enter into a superannuation agreement with a person.
  • A spouse of a DFRB or DFRDB Member, who is in the process of divorcing, or separating from, the Member.
  • A person who intends to enter into a superannuation agreement with a DFRB or DFRDB Member.

 How does Family Law apply to your super?

From 28 December 2002, changes to the Family Law Act 1975 came into effect. The new legislation allows for superannuation to be split on marriage breakdown either by:

  • a court order (i.e. an order made by a court exercising Family Law jurisdiction such as the Family Court or the Federal Magistrates Court) or
  • a superannuation agreement between the parties (i.e. an agreement between the parties that meets the requirements in the Family Law Act 1975).

From 18 May 2004, changes to the legislation governing the DFRDB, MilitarySuper and Defence Force Productivity Benefits Scheme came into effect. These changes allow a separate superannuation interest to be created for a Member’s spouse or former spouse once a valid court order or superannuation agreement has been received. The effect of the legislation is that:

  • A Member’s interest will be split and a separate interest set up in for the spouse (or former spouse) of the Member, who becomes an associate.
  • Member and associate interests will accrue separately, or, if the Member is already receiving a DFRDB or MilitarySuper pension, be paid separately.
  • An associate benefit will be payable immediately (if the Member is already receiving a DFRDB pension) or when the release conditions provided for under scheme legislation and the Superannuation Industry (Supervision) Act 1993 and associated legislation are satisfied, e.g. when a person is on total and permanent incapacity or has died, or has reached preservation age.

These new laws create a framework for splitting superannuation if required. Splitting is not mandatory, but if a superannuation interest is to be split by agreement or court order, then a separate superannuation interest will be created.

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 Who do the superannuation splitting laws apply to?

The new superannuation splitting laws apply to people who:

  • have been married and have divorced, or are still married but are separated and
  • make arrangements to settle their property affairs by a court order or a superannuation agreement under the new legislation.

The superannuation splitting laws also apply to people who have entered a superannuation agreement, either before, during a marriage, or after separation, which prescribes how, in the event of marriage breakdown, superannuation interests are to be split.

 Who is not covered by the superannuation splitting laws?

The superannuation splitting laws do not apply to persons in a de facto relationship because such relationships are dealt with under State and Territory laws rather than Commonwealth laws.

The superannuation splitting laws also do not apply to persons whose property arrangements have been legally finalised before the new laws came into effect on 28 December 2002, unless the court sets aside an earlier order, and makes a new order under Part VIIIB of the Family Law Act after that date.

 More Information

Links

Customer Service Centre

For information about your superannuation entitlement, the payment of your benefit or about any other superannuation related matter, see the Customer Service Centre.

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