Commonwealth Numbered Regulations - Explanatory Statements

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FAMILY LAW (SUPERANNUATION) AMENDMENT REGULATIONS 2003 (NO. 3) 2003 NO. 342

EXPLANATORY STATEMENT

STATUTORY RULES 2003 No. 342

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

FAMILY LAW ACT 1975

FAMILY LAW (SUPERANNUATION) AMENDMENT REGULATIONS 2003 (No. 3)

Subsection 125(1) of the Family Law Act 1975 (the Act) provides that the Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Part VIIIB of the Act provides for the division of superannuation between parties to a marriage on marriage breakdown or divorce.

The Family Law (Superannuation) Regulations 2001 (the Principal Regulations) contain much of the detail of the legislative scheme for the division of superannuation on marriage breakdown or divorce, including provisions for the method for valuing superannuation interests.

The purpose of the Regulations is:

•       to clarify that one of the powers in the Principal Regulations enabling methods or factors to be approved for valuing superannuation interests may be exercised to approve in relation to an interest that is made up of a component that is a defined benefit interest and a component that is an accumulation interest; and

•       remove the need to remake any approvals made to date under that power.

Details of the Regulations are as follows:

Regulation 1 is formal.

Regulation 2 provides for the commencement of the Regulations on gazettal.

Regulation 3 provides for the amendment of the Principal Regulations by Schedule 1.

Schedule 1

Items 1 to 3: Subregulation 5(1), Subregulation 5(2)

Item 1 replaces the definition of the term `defined benefit interest' in subregulation 5(1) of the Principal Regulations with a definition of the term in new subregulations 5(1) and 5(1A).

The new subregulations re-draw the definition as a consequence of the amendment to subregulation 38(1) made by Item 4. In doing so, it makes it clear that a superannuation interest, as originally intended when the Principal Regulations were made in 2001, is not to be taken to be a defined benefit interest by reason alone that it contains a component that is a defined benefit interest.

Items 2 and 3 make a drafting change to subregulation 5(2) consequential on the insertion of new subregulation 5(1A) by Item 1.

Item 4: Subregulation 38(1)

This item re-draws subregulation 38(1) of the Principal Regulations to clarify that the power in regulation 38 enabling the Minister to approve methods or factors that are to be used to determine the value of a superannuation interest that is a defined benefit interest may be exercised to approve methods or factors to be used for valuing a superannuation interest that is made up of a component that is a defined benefit interest and a component that is an accumulation interest.

Item 5: Subregulation 38(3), note

This item omits the note following subregulation 38(3) of the Principal Regulations, which is included, in a revised form, following new subregulation 38(4) (see Item 6).

Item 6: After subregulation 38(3)

This item inserts a new subregulation 38(4) into the Principal Regulations to remove the need to remake any approvals made to date under regulation 38 of the Principal Regulations. Two of the approvals made under regulation 38, contained in the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, contain methods for valuing superannuation interests that are made up of a component that is a defined benefit interest and a component that is an accumulation interest.

The item also includes the note formerly at the end of regulation 38 of the Principal Regulations, with revisions as a result of the re-drawing of subregulation 38(1) (see Item 4).


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