De Facto Partners Now Entitled To Superannuation Splitting Orders

By Carlos Turini – Family Law Specialist

In a separate article, De Facto Partners’ Property Disputes Now in the Family Court, we described the major amendments recently introduced to the Family Law Act 1975 (Cth) from 1 March 2009 to allow former partners in a de facto relationship involved in a property dispute to bring an application in the Family Court or the Federal Magistrate Court.

One of the most significant reforms is that a de facto partner may now seek superannuation ‘splitting orders’ or ‘flagging orders’ as part of a property disputed under the Family Law Act.

Pursuant to a superannuation splitting order, a court would create a separate, personal superannuation entitlement granted to the non member of the superannuation fund.

A court may instead ‘flag’ the entitlement of a non member to a superannuation fund until such time as he/she will receive the appropriate share of the member’s entitlements.

De facto partners were not previously entitled to superannuation splitting orders or flagging order under State or Territory legislation.

Property orders covering superannuation entitlements are particularly significant in Canberra where, frequently, a party may have accumulated entitlements under public servants’ funds such as the:

Commonwealth Superannuation Scheme (CSS);
The Public Sector Superannuation Scheme;
or the Defence Force Retirement and Death Benefits Scheme (DFRDB)

Such entitlements are sometimes worth hundreds of thousands of dollars.

If a party is already receiving a superannuation pension, the other party may be entitled to receive a share of that pension.

If a party has accumulated superannuation entitlements which have not yet been commuted, the other may be entitled to a substantial share of those entitlements which he/she may receive as a new, personal, superannuation entitlement.