EXPLANATORY STATEMENT
FAMILY LAW (SUPERANNUATION) (PROVISION OF INFORMATION – COMMONWEALTH SUPERANNUATION SCHEME) AMENDMENT DETERMINATION 2008 (No.1)
ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL
In this instrument the Attorney-General, under subregulation 64(7) of the Family Law (Superannuation) Regulations 2001, amends the Family Law (Superannuation) (Provision of Information – Commonwealth Superannuation Scheme) Determination 2004 (the Determination).
The Determination makes provision in relation to information that the trustee of the Commonwealth Superannuation Scheme (the Scheme) is required, under the provisions of the Family Law Act 1975 (the FL Act) enabling superannuation to be split in property settlements on marriage breakdown, to provide to spouses and former spouses about superannuation interests for which alternative valuation methods have been approved.
The information that the trustee is required to provide is relevant to valuing interests in accordance with the alternative valuation methods that have been approved.
Several of the alternative valuation methods have, by amendments made to the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 by the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2008 (No. 1), been adjusted to reflect changes to the Scheme permitting the early release of benefits on compassionate or severe financial hardship grounds.
The instrument amends the Determination to require the trustee of the Scheme, when an application is made by a spouse or a former spouse under the provisions of the FL Act for information about an interest for which one of those alternative valuation methods have been approved, to provide information about any early release of benefits on those grounds.
Consultation on the content of the instrument was undertaken under section 17 of the Legislative Instruments Act 2003 with the Australian Government Actuary, the Department of Finance and Deregulation and Commonwealth Superannuation Administration (ComSuper) by way of exchange of correspondence, discussions and a meeting (involving the Australian Government Actuary’s office, the Department of Finance and Deregulation and the Attorney-General’s Department).
Overview
The Family Law (Superannuation) (Provision of Information – Commonwealth Superannuation Scheme) Amendment Determination 2008 (No.1) was enacted to address the need for updating the information requirements for trustees of the Commonwealth Superannuation Scheme in relation to property settlements under the Family Law Act 1975. This amendment was made under the authority of the Attorney-General and responds to changes in the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, which had been adjusted to accommodate early release of benefits on compassionate or severe financial hardship grounds. The policy objective of this determination is to ensure that trustees provide accurate and relevant information about early releases, thereby facilitating fair and informed decisions in family law matters involving superannuation interests. This amendment was developed through consultation with relevant authorities, including the Australian Government Actuary, the Department of Finance and Deregulation, and Commonwealth Superannuation Administration.
Scope and Application
The Family Law (Superannuation) (Provision of Information – Commonwealth Superannuation Scheme) Amendment Determination 2008 (No. 1) amends the existing Determination, which requires the trustee of the Commonwealth Superannuation Scheme to provide information to spouses and former spouses about superannuation interests that have been valued using alternative methods. This amendment responds to recent adjustments in the approved methods for valuing particular superannuation interests, which now include information on early release of benefits on compassionate or severe financial hardship grounds. The legislation applies to trustees of the Commonwealth Superannuation Scheme and to spouses and former spouses who are seeking information about their superannuation interests under the Family Law Act 1975. The changes are intended to ensure that the information provided is accurate and up-to-date with the latest valuation methods. The amendment extends the scope of the information that must be provided by the trustee to include details of any early releases of benefits, which is critical for the proper valuation of superannuation interests in the context of property settlements on marriage breakdown. The instrument operates nationally within the Commonwealth jurisdiction.
Key Provisions
The Family Law (Superannuation) (Provision of Information – Commonwealth Superannuation Scheme) Amendment Determination 2008 (No.1) amends the Family Law (Superannuation) (Provision of Information – Commonwealth Superannuation Scheme) Determination 2004 (section 3(1)). This amendment is necessary to update the information requirements for trustees of the Commonwealth Superannuation Scheme (the Scheme) under the Family Law Act 1975 (the FL Act). Specifically, when a spouse or former spouse applies for information regarding superannuation interests for which alternative valuation methods have been approved, the trustee must now provide details about any early release of benefits due to compassionate or severe financial hardship, as reflected in the amended Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2008 (No. 1). This ensures that the information provided aligns with recent changes in the Scheme that permit early releases under specific circumstances.
Under this Amendment Determination, the trustee of the Scheme is obligated to provide comprehensive information to spouses and former spouses when an application is made under the FL Act. This information pertains to superannuation interests for which alternative valuation methods have been approved, as well as any early release of benefits on compassionate or severe financial hardship grounds. The trustee must ensure that the information provided is accurate and relevant, aiding in the proper valuation of superannuation interests in the context of property settlements following a marriage breakdown. These obligations are crucial for maintaining the integrity and fairness of property settlements under the FL Act.
Failure to comply with the requirements set out in the Family Law (Superannuation) (Provision of Information – Commonwealth Superannuation Scheme) Amendment Determination 2008 (No.1) may have legal consequences. While the Determination itself does not explicitly state penalties for non-compliance, breaches of the Family Law Act 1975 or related regulations can lead to civil or criminal sanctions. For instance, providing inaccurate or incomplete information could potentially be seen as an offence under the Family Law Act, leading to fines or other legal repercussions. Trustees must ensure strict adherence to these provisions to avoid any potential legal issues.