Rare bipartisan support for new super splitting law

By Lloyd Skinner

Single, older, and non-home owning women have been identified as being increasingly at risk of economic hardship including homelessness and poverty (Darab & Hartman, 2013). This problem is significantly caused by issues of family breakdown such as divorce, separation, or family violence which leave women financially insecure and unstable.

This problem is intensified for older women. The predominance of women as secondary wage earners on lower pay rates with increased life expectancy and their variable working patterns, mean their superannuation entitlements are often substantially less than what most men receive and women retire with half the savings of men (Olsberg, 2005; Parliament of Australia 2010; Rosenman 1995). In the event of divorce, the financial position of women is worsened.

Women have not been entitled to areas of family wealth such as prospective superannuation payouts under family law rules regarding financial provision (Neave, 1995). Prior to the 1970s, superannuation as retirement income support was mainly delivered upon the male breadwinner. Women had minimal access occupational superannuation until it was made compulsory in 1992.  Child maintenance and social security payments were often not sufficient in creating parity between men and women (Australian Law Reform Commission, 1987).

The recent passage of legislation in the federal parliament seeks to ensure that superannuation is divided on a more just and equitable basis. The amendment prevent parties from not disclosing, under-disclosing or obstructing the other party from accessing their superannuation assets in family law property proceedings (Djurdjevic, 2021).

The Treasury Laws Amendment (2021 Measure No. 6) Bill 2021 (Schedule 5) allows the Australian Taxation Office (ATO) to release information about a partner’s superannuation to a family law court upon request (Dastoor, 2021). Information that can be sought includes the value and identity of each super fund, any accounts comprising of ATO-held superannuation and amounts of unclaimed super.

The bill was speedily passed through the House of Representatives and Senate with bipartisan support. The bill which will likely come into effect on 1 April 2022, alleviates the financial hardship that women undergo when they take time out of the workforce to support children. It also responds to the negative impact on retirement outcomes, and burden of missing out of finances after fleeing abusive partners (Rae, 2021).

This legislation is an incremental step toward a more just and equitable super splitting process in Australia’s family law system. Industry Super Australia are, however, advocating the government to legislate the continuation of superannuation payments whilst individuals are on parental leave (Brumby in Djurdjevic, 2021), which is where the gender superannuation gap emerges (Clare, 2017).

If you require advice about a super split in a family law property matter, contact Rowan Skinner and Associates Lawyers now for a no obligation phone discussion on (03) 9995 9155.

References

Australian Law Reform Commission. (1987). Matrimonial Property Report, No. 39. Canberra: Australian Government Publishing Service.

Clare, R. (2017). Superannuation Account Balances by Age and Gender. Association of Superannuation Funds of Australia. https://www.superannuation.asn.au/ArticleDocuments/359/1710_Superannuation_account_balances_by_age_and_gender.pdf.aspx?Embed=Y

Darab, S., & Hartman, Y. (2013). Understanding Single Older Women’s Invisibility in Housing Issues in Australia. Housing, Theory and Society, 30(4), 348–367. https://doi.org/10.1080/14036096.2012.746944

Dastoor, C. (2021, September 2). Govt Passes Spousal Super Reform. Money Management. https://www.moneymanagement.com.au/news/superannuation/govt-passes-spousal-super-reform

Djurdjevic, M. G. (2021, September 2). Super Splitting Enshrined in Law. Independent Financial Advisor. https://www.ifa.com.au/news/30019-super-splitting-enshrined-in-law

Neave, M. (1995). “Women, Divorce and Redistributing the Cost of Children.” In Women in a Restructuring Australia: Work and Welfare, edited by A. Edwards and S. Magarey. 223–243. St. Leonards: Allen & Unwin.

Olsberg, D. (2005). Submission to the Productivity Commission Regarding the Draft Research Report, Economic Implications of an Ageing Australia. University of New South Wales Research Centre on Ageing & Retirement. www.pc.gov.au/_data/assets/file/0013/14512/subdr054.rtf.

Parliament of Australia. (2010). Chronology of Superannuation and Retirement Income in Australia. http://www.aph.gov.au/library/pubs/bn/eco/Chron_Superannuation.htm.

Rae, M. (2021, September 2). Laws to help split savings after break-ups. The Canberra Times. https://www.canberratimes.com.au/story/7414170/laws-to-help-split-savings-after-break-ups/?cs=14264

Rosenman, L. (1995). “Superannuation Guarantee Charge: Benefits and Risks.” In Women in a Restructuring Australia: Work and Welfare, edited by A. Edwards and S. Magary. 191–200. St. Leonards: Allen & Unwin.