EXPLANATORY STATEMENT

 

Select Legislative Instrument 2009 No. 19

 

ISSUED BY THE AUTHORITY OF THE ATTORNEY-GENERAL

 

FAMILY LAW ACT 1975

 

FAMILY LAW (SUPERANNUATION) AMENDMENT REGULATIONS 2009 (No. 1)

 

Subsection 125(1) of the Family Law Act 1975 (FLA) provides, in part, 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 FLA provides for the division of superannuation between married and de facto couples on relationship breakdown.

 

The purpose of the Regulations is to amend the Family Law (Superannuation) Regulations 2001 (the Principal Regulations), which contain most of the legislative provisions for the division of superannuation on relationship breakdown, to reflect recent amendments made to the Act by the Family Law Amendment (De Facto Financial Matters and Other Measures) Act 2008.

 

The recent amendments extend the superannuation splitting provisions of the FLA to de facto couples. The Regulations make minor amendments to ensure de facto couples can obtain information from fund trustees about commutation factors for converting superannuation pension benefits to a lump sum.

 

The Regulations also correct a typographical error in the definition of a factor used in a formula in Schedule 2 to the Principal Regulations.

 

The Regulations relating to the recent amendments made to the Act commence on 1 March 2009, to coincide with the commencement of those recent amendments. The Regulations which correct the typographical error in Schedule 2 commence on the day after the Regulations are registered on the Federal Register of Legislative Instruments.

 

Details of the Regulations are as follows:

 

Regulation 1 - Name of Regulations

 

Regulation 1 provides that the name of the Regulations is the Family Law (Superannuation) Amendment Regulations 2009 (No. 1).

 

Regulation 2 – Commencement

 

Paragraph 2(a) provides for regulations 1, 2 and 3 and Schedule 1 to commence on the day after the Regulations are registered on the Federal Register of Legislative Instruments.

 

Paragraph 2(b) provides for Schedule 2 to commence on 1 March 2009.

 

Regulation 3 - Amendment of the Family Law (Superannuation) Amendment Regulations 2001

 

Regulation 3 provides that the Family Law (Superannuation) Regulations 2001 (the Principal Regulations) are amended as set out in Schedules 1 and 2.

 

Schedule 1 – Amendments commencing on the day after registration

 

Item [1]: Schedule 2, Part 6, subclause 34(3), definition of Dy+1

 

This item corrects a typographical error in Schedule 2, Part 6, subclause 34(3), definition of Dy+1 of the Principal Regulations.

 

Clause 34 sets out the formula to determine the gross value of a defined benefit superannuation interest held by a person as a result of employment in which he or she is no longer engaged which will pay benefits in the form of a pension. This item corrects typographical errors in the definition of Dy+1 appearing in that formula by correcting each reference in that definition to the words ‘lump sum’ to a reference to ‘pension’.

 

Schedule 2 – Amendments commencing on 1 March 2009

 

Items [1] and [2]: Paragraph 68A(2)(d), Paragraph 68A(3)(b)

 

These items amend existing paragraphs 68A(2)(d) and 68A(3)(b) of the Principal Regulations to insert ‘or a de facto relationship’ after ‘an earlier marriage’.

 

Regulation 68A requires a superannuation fund trustee, on receipt of an application under section 90MZB of the Family Law Act 1975, to provide information to the applicant about the commutation factor that would apply for converting pension benefits, payable under a superannuation interest, to a lump sum. Recent amendments made to that Act extend the superannuation splitting provisions in Part VIIIB of the Act to parties to a de facto relationship which has broken down. These items ensure that parties to de facto relationships that have broken down may obtain information about the commutation factor pursuant to regulation 68A.

 

Consultation on the content of the Regulations was undertaken under section 17 of the Legislative Instruments Act 2003 with the Investment & Financial Services Association Ltd and the Association of Superannuation Funds of Australia Ltd. The consultation involved exchange of correspondence and discussions.