Superannuation and Family Law

Today the Government is releasing a position paper on reforms in the area of superannuation and family law. This follows the Prime Minister’s announcement on International Women’s Day on 8 March 1998 that the Government would actively work to introduce reforms to bring about greater fairness and certainty in the treatment of superannuation in the event of marriage breakdown. The paper represents the Government’s consideration of the issues and presents a preferred position for reform.

The issue of how to deal with superannuation on the breakdown of marriage has become increasingly important.

Superannuation coverage is expanding significantly, with our greater emphasis on improving living standards in retirement through increased self provision, and as a result of the Superannuation Guarantee. Superannuation is an increasingly important source of income in retirement for most Australians. Reforms such as choice of fund will also mean that people will have greater scope to choose superannuation arrangements having regard to their own circumstances and preferences.

Inadequacies in the current regime for dealing with superannuation on marriage breakdown have been apparent for some time.

• There is a lack of certainty as to how superannuation is treated under the Family Law Act.
• There are difficulties in valuing superannuation interests.
• There are limits on the choices available to separated couples to deal with their superannuation interests and reach an agreement that best meets their needs and wishes.

The proposals in the position paper are based on the premise that both parties to a marriage have an equal right to superannuation interests accumulated during the time they lived together. At a time when parties are faced with very difficult and emotional decisions about how to divide their property, they should not be unduly constrained in selecting options that best suit their particular needs. The proposals in the position paper will expand the choices available to separating couples. Most importantly, the proposals will, for the first time, enable separating couples to divide a superannuation interest where this is in their best interests.

This reform is long overdue. The Government’s position paper presents a proposed model to address the current inadequacies.

Both men and women will benefit from arrangements which allow them greater choice to achieve a better balance between present and future needs.

The proposals in the position paper reflect the fact that the Commonwealth does not have the Constitutional power to make laws with regard to de facto relationships. However, the Commonwealth’s proposed treatment of superannuation on marriage breakdown should provide a model for the States and Territories to amend or introduce de facto relationships legislation and the Commonwealth will encourage them to do so.

The Government has set aside a period for public consultation prior to finalising its approach to these reforms. Any new arrangements arising out of this position paper will apply only to settlements made after the proposed reforms have been implemented.

Niki Savva
Treasurer’s Office
ph 02 6277 7340

Nicholas Harford
Attorney-General’s Office
ph 02 6277 7300

Dennis Godfrey
Minister Moylan’s Office
ph 02 6277 7006

CANBERRA

19 May 1998