{"id":"F2004B00098","name":"Superannuation (Family Law—Superannuation Act 1922) Orders 2004","slug":"superannuation-family-law-superannuation-act-1922-orders-2004","collection":"legislative_instrument","jurisdiction":"commonwealth","status":"in_force","isInForce":true,"actNumber":"85 of 2004","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":31245,"registerId":"commonwealth-F2004B00098-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Name of Orders","content":"#### 1 Name of Orders\n\n  These Orders are the Superannuation (Family Law—Superannuation Act 1922) Orders 2004.","sortOrder":0},{"sectionNumber":"3","sectionType":"section","heading":"Definitions","content":"#### 3 Definitions\n\n  (1) In these Orders:\n\n> Act means the Superannuation Act 1922.\n\n> FLS Regulations means the Family Law (Superannuation) Regulations 2025.\n\n  (2) An expression that is used in these Orders, and defined in section 93DA of the Act, has the meaning given by that section.\n\n> Note: Section 93DA of the Act defines expressions including non‑member spouse, operative time and transfer amount. Some expressions are defined in section 93DA to have the same meaning as in the Family Law Act 1975.","sortOrder":1},{"sectionNumber":"4","sectionType":"section","heading":"Annual rate of associate pension for non‑member spouse","content":"#### 4 Annual rate of associate pension for non‑member spouse\n\n  For subsection 93DB(2) of the Act, the annual rate of associate pension payable to a non‑member spouse to whom that subsection relates is calculated as follows:\n\n| Step 1 | Identify the transfer amount in relation to the non‑member spouse.Note: Subsection 93DB(2) of the Act requires the rate of associate pension to be calculated by reference to the transfer amount.                                           |\n| ------ | -------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |\n| Step 2 | Identify a factor for the non‑member spouse that is equal to the value Py+m specified in clause 3 of Schedule 5 to the FLS Regulations.Note: The associate pension payable to a non‑member spouse does not include a reversionary component. |\n| Step 3 | Divide the transfer amount by the factor worked out in step 2.The result is the annual rate of the associate pension.                                                                                                                        |","sortOrder":2},{"sectionNumber":"5","sectionType":"section","heading":"Commutation of small associate pension—minimum amount","content":"#### 5 Commutation of small associate pension—minimum amount\n\n  (1) For subsection 93DC(1) of the Act, the amount is $1 300.\n  (2) The amount is to be indexed in the same way, and at the same time, as a standard pension is indexed under Part XI of the Act.","sortOrder":3},{"sectionNumber":"6","sectionType":"section","heading":"Reduction of standard pension","content":"#### 6 Reduction of standard pension\n\n  For subsection 93DD(1) of the Act, the amount to which an annual rate of standard pension payable in respect of an original interest is to be reduced is calculated as follows:\n\n| Step 1  | Identify the annual rate of standard pension that was payable in relation to the member spouse immediately before the operative time.                                                                                                                                                             |\n| ------- | ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- |\n| Step 2  | If that annual rate of standard pension takes account of the existence of 1 or more eligible children, deduct the part of the annual rate that takes account of the existence of the eligible children.                                                                                           |\n| Step 3A | If the standard pension payable in relation to the member spouse is a spouse pension or an associate pension, identify a factor for the member spouse that is equal to the valuePy+mspecified in clause 3 of Schedule 5 to the FLS Regulations, calculated immediately before the operative time. |\n| Step 3B | If step 3A does not apply, identify a factor for the member spouse that is equal to the value(Py+m + (r  Ry+m))specified in clause 3 of Schedule 5 to the FLS Regulations, calculated immediately before the operative time.                                                                     |\n| Step 4  | Multiply the annual rate of standard pension (or the rate worked out under step 2, if applicable) by the factor worked out in step 3A or 3B.                                                                                                                                                      |\n| Step 5  | Identify the transfer amount in relation to the non‑member spouse and subtract it from the amount worked out in step 4.                                                                                                                                                                           |\n| Step 6  | Divide the amount worked out in step 5 by the factor worked out in step 3A or 3B.                                                                                                                                                                                                                 |\n| Step 7  | If step 2 applies, increase the rate worked out in step 6 by the part of the rate that was deducted under step 2.The result is the annual rate of the standard pension payable after the operative time in respect of the original interest.                                                      |","sortOrder":4}],"analysis":{"flash_summary":{"complexity_score":6,"scope_assessment":{"changed":false,"description":"This instrument is narrowly technical: it specifies numerical formulas and a commutation threshold to implement existing splitting provisions in the Superannuation Act 1922 (see clauses 3–6). It does not expand or add substantive new powers or categories of persons affected beyond the Act’s family law superannuation splitting framework; rather it sets out how to calculate outcomes within that framework. Therefore the scope has not materially changed from the instrument’s apparent original purpose of providing calculation mechanics."},"complexity_factors":["Cross‑references to the Superannuation Act 1922 (section 93DA) and to the Family Law (Superannuation) Regulations 2025 (Schedule 5, clause 3).","Several defined technical terms are adopted from another Act (section 93DA), increasing interpretive dependency.","Multiple multi‑step calculation algorithms (clauses 4 and 6) with conditional branching (step 3A vs 3B).","Use of notation/variables (Py+m, Ry+m, r) drawn from an external schedule rather than spelled out in the Orders themselves (clauses 4 and 6).","Indexation linkage for the commutation threshold to Part XI of the Act (clause 5) — a timed external dependency.","Nested operations (remove child component, apply factor, subtract transfer amount, divide back, then possibly re‑add child component) in clause 6 — several sequential arithmetic transformations.","Legal cross‑references to other legislation (Family Law Act 1975 meanings via section 93DA) add jurisdictional interplay and potential ambiguity."],"plain_english_summary":"**What this instrument does (mechanically)**\n\n- It supplies the technical rules for how certain superannuation payments are worked out when superannuation is split between spouses under the Superannuation Act 1922 (the Act).\n\n- Key pieces it sets out:\n  - Definitions: it declares that “Act” means the Superannuation Act 1922 and that “FLS Regulations” means the Family Law (Superannuation) Regulations 2025. It also adopts terms defined in section 93DA of the Act (for example: non‑member spouse, operative time, transfer amount) (clause 3).\n  - Annual rate of associate pension for a non‑member spouse: the rate is calculated by taking the transfer amount (the dollar amount transferred under the family law split) and dividing it by a factor (labelled Py+m in Schedule 5, clause 3 of the FLS Regulations). The clause also notes the associate pension does not include any reversionary component (clause 4).\n  - Commutation (lump sum conversion) threshold for small associate pensions: the minimum pension amount that may be commuted to a lump sum is fixed at $1,300, and that figure is to be indexed in the same way and at the same time as a standard pension is indexed under Part XI of the Act (clause 5).\n  - Reduction of a member spouse’s standard pension when part of the original interest is transferred: a step‑by‑step algorithm sets out how to reduce the member spouse’s annual standard pension rate after the operative time. The algorithm walks through identifying the pre‑operative pension, removing any child‑related component, choosing one of two possible multiplicative factors (depending on whether the pension is a spouse/associate pension or some other standard pension), multiplying, subtracting the transfer amount, dividing back by the factor, and then, if needed, restoring any child component that was stripped out earlier. The factors referenced come from clause 3 of Schedule 5 to the FLS Regulations and use terms such as Py+m, Ry+m and r (clause 6).\n\n**Who this affects**\n\n- Primary impacts fall on:\n  - Non‑member spouses who receive an associate pension after a family law splitting of superannuation: it fixes how their annual pension is calculated (clause 4).\n  - Member spouses whose standard pension is reduced because a transfer amount is taken out of their original interest: it prescribes precisely how that reduced pension is calculated (clause 6).\n  - Superannuation trustees and administrators: they must apply the formulas, use the factors from the FLS Regulations, index the commutation threshold, and record operative times and transfer amounts (clauses 3–6).\n\n- Indirectly affects family law practitioners who advise clients on the monetary consequences of splitting superannuation, because the instrument determines the numeric outcome of splits.\n\n**Why it matters (policy purpose asserted, and practical tests)**\n\n- The instrument’s stated purpose is to implement the calculation mechanics required by the Act for splitting superannuation rights on family law breakdowns (see clauses 3–6). In other words, it converts statutory concepts (transfer amount, operative time, associate pension, standard pension) into numeric formulae trustees can apply.\n\n- Practical implications and trade‑offs:\n  - Certainty vs complexity: the Orders give a deterministic computation method (certainty for parties and trustees) but rely on external factors and cross‑references (FLS Regulations Schedule 5; section 93DA definitions), which increases compliance complexity (clauses 3, 4, 6).\n  - Administrative cost: trustees must extract the relevant factors (Py+m, Ry+m, r) and apply conditional logic (e.g. step 3A vs 3B in clause 6). That creates an ongoing modest compliance and systems burden for funds (clauses 4, 6).\n  - Distribution of cash flows: the mechanism shifts pension entitlement from the member spouse’s standard pension into a separate associate pension for the non‑member spouse (clauses 4, 6). The member’s pension is reduced by a formulaic amount (clause 6), while the non‑member receives a pension determined by the transfer amount divided by the applicable factor (clause 4).\n  - Small‑value commutation: the fixed commutation minimum ($1,300) reduces the number of tiny ongoing pensions by permitting lump‑sum commutation below that threshold; indexing keeps that threshold aligned to standard pension movements (clause 5). That reduces long‑term administrative overhead but affects the timing and form (income vs lump sum) of benefits for low‑value claimants.\n\n**Costs, incentives and implementation risks**\n\n- Who pays: reduced ongoing pension payments are ultimately borne by the original interest (the member spouse’s pension stream/interest) because the transfer amount is taken from that interest; trustees effect the change (clauses 4, 6).\n\n- Incentives created:\n  - Parties in family law property settlements get a predictable numerical rule to value superannuation transfers, which may influence settlement choices (clauses 4, 6).\n  - Trustees are incentivised to ensure accurate factor application at the operative time to avoid downstream recalculation liability (clauses 3, 6).\n\n- Implementation risks and compliance burden:\n  - Reliance on external definitions and a separate instrument (FLS Regulations Schedule 5 clause 3 and section 93DA of the Act) creates a risk of misapplication if trustees or advisers use the wrong version of the regulation or misinterpret symbol notation such as Py+m or Ry+m (clauses 3, 4, 6).\n  - The conditional steps (particularly step 3A vs 3B in clause 6) require trustees to correctly classify the type of pension (spouse/associate or not) as at the operative time. Errors will change pension amounts.\n  - Indexation linkage for the commutation threshold means systems must track Part XI indexation events (clause 5).\n\n**Effects on private enterprise and choice**\n\n- The Orders are largely technical and administrative. They do not alter market competition, prices, or the legal ability of superannuation funds to operate, but they do impose rules trustees must follow when implementing family law splits (clauses 3–6).\n\n- For individuals, the Orders affect the form and size of retirement income after a family law split (annual pension vs lump sum; reduced member pension vs new associate pension) and therefore may affect retirement planning choices (clauses 4–6).\n\n**Concentrated benefits and diffuse costs**\n\n- Concentrated benefits: recipients of associate pensions and family law litigants gain a predictable conversion from a transfer amount to an annual pension (clause 4).\n\n- Diffuse costs: administrative and compliance costs fall across trustees and, indirectly, to members through administrative expenses or marginally altered benefit flows (clauses 3–6).\n\n**Where discretion remains**\n\n- The Orders are prescriptive rather than discretionary: most of the mechanics are formula‑driven. Discretion mainly sits in the accurate application of definitions (operative time, transfer amount) as provided in section 93DA of the Act and in choosing which branch of the step algorithm applies (clauses 3, 6)."},"kimi_summary":{"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":false,"description":"These Orders appear tightly scoped to their original purpose. They are purely machinery provisions — technical calculation rules for implementing family law superannuation splitting under the 1922 Act. There is no evidence of scope creep; the instrument does exactly what its name suggests and contains no extraneous policy matters, enforcement provisions, or expanded definitions beyond the necessary mathematical framework."},"complexity_factors":["Heavy reliance on external regulations: The calculation steps reference 'clause 3 of Schedule 5 to the FLS Regulations' without reproducing those formulas, making the Orders incomprehensible without cross-referencing the 2025 Family Law (Superannuation) Regulations","Nested conditional logic: Step 3A and 3B present alternative calculation paths depending on whether the pension is a 'spouse pension', 'associate pension', or standard pension with reversionary components","Circular mathematical operations: The reduction calculation requires multiplying by a factor (Step 4), then subtracting the transfer amount (Step 5), then dividing by the same factor again (Step 6)","Defined terms with external references: Terms like 'operative time', 'transfer amount', and 'non-member spouse' are defined in the parent Act (section 93DA) rather than in these Orders","Indexing mechanics: Section 5 requires tracking indexation 'in the same way, and at the same time, as a standard pension is indexed under Part XI of the Act' — another external cross-reference","Legacy scheme specificity: The entire instrument only applies to the 1922 Act, which is itself a historical piece of legislation, creating a 'law about old law' layering effect"],"plain_english_summary":"**What this legislation does:**\n\nThese Orders set out the technical rules for how superannuation (retirement savings) is split between separating couples under a very specific old Commonwealth public service superannuation scheme — the **Superannuation Act 1922**.\n\nWhen couples divorce or separate, family law allows superannuation to be divided between them. These Orders explain exactly how to calculate:\n\n*   **The pension for the non-member spouse** — the partner who didn't work in the public service but is entitled to a share of their ex-partner's super (called an \"associate pension\")\n*   **How much the original public servant's pension gets reduced** — since some of it is now going to the ex-partner\n*   **When small pensions can be cashed out** — setting a $1,300 threshold below which the non-member spouse can take a lump sum instead of a tiny ongoing pension\n\n**Who it affects:**\n\n*   Former Commonwealth public servants (and their ex-spouses) who are members of the **1922 Superannuation Act scheme** — this is a closed, legacy scheme covering long-retired or retiring federal public servants from decades past\n*   Family lawyers and courts handling property settlements involving these specific superannuation interests\n\n**Why it matters:**\n\nWithout these technical calculations, courts and superannuation funds wouldn't know exactly how much to pay each party when a marriage or de facto relationship ends. The Orders ensure the split is actuarially fair — meaning the maths accounts for life expectancy and interest rates so neither party is unfairly advantaged.\n\nThe Orders rely on **factors** (mathematical multipliers) from the Family Law (Superannuation) Regulations, which convert lump sum values into annual pension rates based on age and gender."},"flash_summary_failed":{"failed":true,"reason":"A positive credit balance is required for all requests, including BYOK, so fallback providers remain available. Add credits at https://vercel.com/d?to=%2F%5Bteam%5D%2F%7E%2Fai%3Fmodal%3Dtop-up to continue.","source":"analysis-cron"}},"importantCases":[],"_links":{"self":"/api/acts/superannuation-family-law-superannuation-act-1922-orders-2004","history":"/api/acts/superannuation-family-law-superannuation-act-1922-orders-2004/history","analysis":"/api/acts/superannuation-family-law-superannuation-act-1922-orders-2004/analysis","conflicts":"/api/acts/superannuation-family-law-superannuation-act-1922-orders-2004/conflicts","importantCases":"/api/acts/superannuation-family-law-superannuation-act-1922-orders-2004/important-cases","documents":"/api/acts/superannuation-family-law-superannuation-act-1922-orders-2004/documents"}}