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05 June 2020

Seeking value

Family Law
Federal

Asked

Property settlement - Superannuation splitting - Needing actuary to determine value

We act for the wife in a property settlement. The husband has $500,000 in a superannuation fund which is being paid to him as a pension. We lodged a Form 6 Declaration by Applicant for Information about a Superannuation Interest with the fund. They replied that the amount is splittable but they cannot give us a value of what is left in the fund and that an actuary needs to calculate the figure. The fund does not have an actuary. How do we go about appointing an actuary to do this?

Answered

Thank you for the question.

Section 90XZB of the Family Law Act 1975 provides that the trustee of a superannuation fund must provide information to any eligible person who applies under the section, sufficient to allow them to properly negotiate a superannuation agreement. Failure to do so is an offence under the section. It might assist to point this out to the trustee. However, as ‘information’ is defined as ‘any document’, it may be that the trustee does not have a document that contains the necessary information; hence the proposed need for an actuary to create one.

If so, and the parties cannot otherwise agree, then a consultant actuary will need to be engaged and fully briefed to prepare a report valuing the superannuation interest in accordance with the Family Law (Superannuation) Regulations 2001. This may involve considerable cost and, in the absence of agreement, there may need to be orders sought as to how the parties will share that cost. An appropriate expert can be sourced by a Google search, a referral from an accountancy or specialist superannuation advisory firm, or an approach to the Actuaries Institute.

The By Lawyers Property Settlement guide and 101 Family Law Answers contain detailed information on superannuation splitting and expert evidence.

Regards

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