In April 2019, the Australian Law Reform Commission released its final report: “Family Law for the Future”. Recommendation 17 is that the Family Law Act should be amended to simplify the process for splitting superannuation by developing template superannuation splitting orders for commonly made superannuation splits. This is a pragmatic proposal.
The trustee of a superannuation fund is a third party to a marriage/de facto relationship and cannot be bound by the terms of a payment splitting order unless it has been given an opportunity to consider the proposed form of splitting orders. Such splitting orders must be drafted in accordance with the limitations on the court’s powers. The payments are split, not the underlying superannuation interest.
Some fund trustees post templates on their websites to assist lawyers and parties undertaking proposed splits with a view to streamlining the process and avoiding error and consequent costs. Other fund trustees have the skilled staff of their administrators vet the form of orders or outsource the task to lawyers to ensure they are within the courts’ powers and there are sufficient funds for splitting.
If the process can be simplified there will be benefits for the whole community. A similar proposal was on a to-do list for the Productivity Commission some years ago. With the increasing merger and conglomeration of superannuation funds more parties will be members in fewer funds, and fewer funds should hopefully mean more collaboration by trustees and administrators giving effect to this recommendation in the interests of all members. We will keep you informed if there is any action on this recommendation.