A type of property ownership or arrangement where one party, known as the trustee, holds property or money for the benefit of another party, referred to as the beneficiary. deeds provide for benefits to be paid to members and their dependants in different circumstances. These may include resignation, retirement, total and permanent disability, total and temporary disability, and death benefits.
Trustees normally have no Power to choose whether to do something or not. For example, a judge may have discretion to allow a party extra time to complete a document if it would be unfair to enforce the legal time limit. regarding the payment of resignation or retirement benefits. Disputes concerning these benefits are usually about the calculation of the amount of the benefit.
Most superannuation benefits are ‘preserved’ and cannot normally be paid to a person until they retire after a certain age (see ‘Access to benefits’, below), reach age 65, become permanently incapacitated, permanently depart from Australia, suffer severe financial hardship, or suffer temporary incapacity, or on compassionate grounds.
Benefits contributed before 1986 or 1990 (depending on the fund involved) are generally not preserved. Un-deducted contributions (that is, those on which a tax deduction was not claimed) were generally not preserved until 1 July 1999. Since that date, all contributions are preserved (or, more accurately, restricted).
Access to benefits
There may be some unpreserved benefits that can be accessed before retirement and some preserved benefits can be accessed in an emergency. The relevant age for the retirement of a person born before 1 July 1960 is 55 years. This increases to 60 for those born after 30 June 1964, with transitional ages for those born between those dates.
However, if a person has received an income support payment – such as Newstart, a sickness allowance, or a disability support pension
(see www.humanservices.gov.au/customer/enablers/income-support-payment-description; or a list of eligible income support payments can be obtained by telephoning Centrelink on 13 23 00) – for a continuous period of 26 weeks and is unable to meet reasonable and immediate family living expenses, and if the fund’s A formal legal document setting out the rights and obligations of all the parties to a trust. allows early A document signed by parties ending a court action. The party who began the action agrees to drop it, often in exchange for a payment by the other party. Also called terms of settlement., up to $10 000, less applicable tax, a year can be released early. A letter confirming the period and nature of the payment (obtainable by telephoning 13 23 00) must be attached to an application form (obtainable from the trustee of the fund) and forwarded to the trustee of the fund. A person who has been on income support payments for 39 weeks after reaching preservation age can also obtain an early release.
Funds can also be released early for medical treatment, medical transport, modification of a house or car for a disabled person, death, funeral, burial or palliative care expenses, or for A restriction attached to ownership of property to secure the repayment of money borrowed. The mortgage stops the owner of the property selling it until they have paid off the debt. payments to stop a A person or body, such as a bank, that lends money secured by a mortgage over the property of the borrower. from selling the person’s home. The application is made to Centrelink (at www.humanservices.gov.au/customer/services/centrelink/early-release-superannuation).
Some A debt that does not have to be paid until some future time. Being allowed to pay later, in the future, for something you are getting now. providers encourage debtors to access superannuation funds to pay a mortgage, even though the mortgage may not be viable in the longer term, meaning that both the house and the superannuation are eventually lost.
Information from funds
A member of a regulated fund is entitled to certain information to be provided automatically by the fund. This includes:
- an annual member statement showing the amount of the benefit at the start and end of the year (generally 1 July to the next 30 June), the preserved amount and fund contact details, and the value of the benefit on resignation or retirement, including death and disability benefits;
- an annual fund report showing the fund’s financial position and performance; and
- notice of any changes that affect the member, such as any change to the fund rules.
Superannuation and bankruptcy
Some superannuation entitlements are protected if a person goes bankrupt, meaning that the creditors cannot take the superannuation savings. The bankrupt retains the benefit of monies in a regulated (and certain other types of) superannuation fund subject to some exceptions.
However, a payment to a superannuation fund may be caught by the relation back or avoidance provisions of the When a debtor who cannot pay their debts has their money and property taken over and managed by a trustee who uses it to pay back creditors. The debtor is then called a bankrupt. A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1966 (Cth), even though that payment gives rise to the interest in the fund, which is protected (see Official Trustee in Bankruptcy v Trevor Newton Small Superannuation Fund Pty Ltd  FCA 1267).