Family Law (Superannuation) Regulations 2001

Part 1—Preliminary

1 Name of Regulations

These Regulations are the Family Law (Superannuation) Regulations 2001.

3 Definitions

In these Regulations, unless the contrary intention appears:

accumulation interest means a superannuation interest, or a component of a superannuation interest, that is not a defined benefit interest or a small superannuation accounts interest.

Act means the Family Law Act 1975.

adjusted base amount, in relation to a non‑member spouse at a particular date, means the base amount allocated to the non‑member spouse, adjusted at that date in accordance with Division 6.1A.

allocated annuity means an annuity that is paid, within a range of minimum and maximum payments, from an identifiable lump sum and includes an annuity that arises under a contract that meets the standards of subregulation 1.05(4) of the SIS Regulations.

allocated pension means a pension paid, within a range of minimum and maximum payments, from an identifiable lump sum, including:

(a) a pension provided under rules of a superannuation fund that meet the standards of subregulation 1.06(4) of the SIS Regulations; and
(b) a pension provided under terms and conditions of an RSA that meet the standards of subregulation 1.07(2) of the RSA Regulations.

annuity provider means a person, body or organisation that has entered into a contract to provide an annuity.

constitutionally protected fund has the meaning given by subsection 995‑1(1) of the Income Tax Assessment Act 1997.

Deed means the trust Deed as existing at the time this definition commences governing the scheme continued in existence under section 5 of the Superannuation (State Public Sector) Act 1990 (Qld).

deferred annuity means an annuity that is not presently payable.

defined benefit interest has the meaning given by regulation 5.

exempt public sector superannuation scheme has the same meaning as in the SIS Act.

fixed term annuity means an annuity that:

(a) is not a market linked annuity; and
(b) is paid for a fixed period.

Government Division Rules means the Division Rules (within the meaning of the Deed) as existing at the time this definition commences that relate to the Government Division referred to in clause 2.1 of the Deed.

growth phase, in relation to a superannuation interest (other than a small superannuation accounts interest) of a member spouse, has the meaning given by regulation 6 or 7.

Judges’ Pensions Act Scheme means the scheme constituted by the Judges’ Pensions Act 1968 for the provision of retirement and other benefits to and in respect of Judges, within the meaning of that Act.

lifetime pension: a benefit in respect of a superannuation interest, or a component of a superannuation interest, of a member spouse in an eligible superannuation plan is a lifetime pension of the member spouse if the benefit is payable as a pension for the life of the member spouse.

Note: Regulation 11A also affects the meaning of lifetime pension.

market linked annuity means an annuity, other than an allocated annuity, that:

(a) is paid from an identifiable lump sum; and
(b) arises under a contract that meets the standards of subregulation 1.05(10) of the SIS Regulations.

market linked pension means a pension, other than an allocated pension, paid from an identifiable lump sum that meets the standards of subregulation 1.06(8) of the SIS Regulations or subregulation 1.07(3A) of the RSA Regulations.

member information statement, in relation to a member of an eligible superannuation plan, means a statement issued periodically to the member by the trustee of the plan that sets out information about the value of the member’s interest in the plan (for example, the member’s account balance, share in the plan or withdrawal benefit) at a particular date.

member’s retirement age, for a member who has a defined benefit interest in an eligible superannuation plan, means:

(a) subject to paragraphs (b) and (c), the latest retirement age for the member specified in the governing rules of the plan; or
(b) if the latest retirement age for the member specified in the governing rules of the plan is more than 65 years, or no retirement age is specified in the governing rules of the plan—65 years; or
(c) if the Minister has, under regulation 30, approved a retirement age as the retirement age for members of the plan, or an identifiable class of members of the plan that includes the member—the approved age.

Note: Regulation 30 authorises the Minister to approve as the retirement age for members, or an identifiable class of members, who hold a defined benefit interest in an eligible superannuation plan, an age other than:

(a) the retirement age specified in the governing rules of the plan; or
(b) the age of 65 years.

net earnings, in relation to a superannuation interest in a regulated superannuation fund, approved deposit fund or RSA to which the financial product disclosure provisions of the Corporations Regulations 2001 (being the provisions in Part 7.9 of those Regulations) apply, has the meaning given by regulation 7.9.01 of those Regulations.

partially vested accumulation interest has the meaning given by regulation 9.

Participation Schedule means the part of the Government Division Rules known as the Participation Schedule.

payment phase, in relation to a superannuation interest (other than a small superannuation accounts interest) of a member spouse, has the meaning given by regulation 8.

pension means a pension, within the meaning of section 10 of the SIS Act, payable from an eligible superannuation plan (other than an account within the meaning of the Small Superannuation Accounts Act 1995).

percentage‑only interest has the meaning given by regulation 9A.

public sector superannuation scheme has the same meaning as in the SIS Act.

relevant date, for the purpose of determining, under Part 5, an amount in relation to a superannuation interest that is subject to a payment split, means:

(a) in relation to a payment split under a superannuation agreement or flag lifting agreement:
(i) the date agreed on for that purpose by the parties to the agreement; or
(ii) if no date is agreed on by the parties to the agreement and the agreement is dated—the date shown on the agreement; or
(iii) if no date is agreed on by the parties to the agreement and the agreement is not dated—the date when a copy of the agreement is served on the trustee of the relevant eligible superannuation plan; and
(b) in relation to a payment split under a splitting order—the date determined by the court.

RSA Regulations means the Retirement Savings Accounts Regulations 1997.

self managed superannuation fund has the same meaning as in the SIS Act.

SIS Regulations means the Superannuation Industry (Supervision) Regulations 1994.

small superannuation accounts interest means a superannuation interest in an account within the meaning of the Small Superannuation Accounts Act 1995.

superannuation annuity has the meaning given by subsection 995‑1(1) of the Income Tax Assessment Act 1997.

superannuation contributions surcharge means superannuation contributions surcharge under the Superannuation Contributions Tax (Assessment and Collection) Act 1997.

superannuation fund has the same meaning as in the SIS Act.

unflaggable interest has the meaning given by regulation 10A.

unsplittable interest has the meaning given by regulation 11.

withdrawal benefit:

(a) for a member of a regulated superannuation fund, an exempt public sector superannuation scheme or an approved deposit fund, has the meaning given by subregulation 1.03(1) of the SIS Regulations; and
(b) for a member of an RSA, has the meaning given by subregulation 1.03(1) of the RSA Regulations; and
(c) for a member who has a small superannuation accounts interest, means the balance of the member’s account; and
(d) for a member of any other eligible superannuation plan, means the total amount of benefits that would be payable to the member if the member voluntarily ceased to be a member of the plan.

4 Expressions used in Part VIIIB or VIIIC of the Act

An expression used in these Regulations that is also used in Part VIIIB or VIIIC of the Act has the same meaning as in that Part, to the extent that these Regulations have effect for the purposes of that Part.

Note: See sections 90XD and 90YD of the Act for definitions in Parts VIIIB and VIIIC, respectively, of the Act.

5 Meaning of defined benefit interest

(1) For the purposes of these Regulations, a defined benefit interest is: (a) subject to subregulation (2), a superannuation interest that a member spouse has in an eligible superannuation plan, being an interest in respect of the whole of which the member spouse is entitled, when benefits in respect of the interest become payable, to be paid a benefit that is, or may be, defined by reference to one or more of the amounts or factors mentioned in subregulation (1A); or (b) subject to subregulation (2), a component of a superannuation interest that a member spouse has in an eligible superannuation plan, being a component in respect of which the member spouse is entitled, when benefits in respect of the interest become payable, to be paid a benefit that is, or may be, defined by reference to one or more of the amounts or factors mentioned in subregulation (1A); or (c) a superannuation interest that: (i) a member spouse has in the scheme provided for by the Australian Defence Force Cover Act 2015; and (ii) is in the payment phase. (1A) For subregulation (1), the amounts and factors are as follows: (a) the amount of: (i) the member spouse’s salary at the date of the termination of the member spouse’s employment, the date of the member spouse’s retirement, or another date; or (ii) the member spouse’s salary averaged over a period; (b) the amount of salary, or allowance in the nature of salary, payable to another person (for example, a judicial officer, a member of the Commonwealth or a State Parliament, a member of the Legislative Assembly of a Territory); (c) a specified amount; (d) specified conversion factors. (2) However, a superannuation interest, or a component of a superannuation interest, is not a defined benefit interest because of paragraph (1)(a) or (b) if: (a) the only benefits payable in respect of the interest or component that are defined by reference to the amounts or factors mentioned in subregulation (1A) are benefits payable on death or invalidity; and (b) there are no other circumstances in which benefits payable in respect of the interest or component are, or could have been, defined by reference to the amounts or factors mentioned in subregulation (1A).

Note 1: Subregulation (2) has the effect that paragraphs (1)(a) and (b) do not apply to a superannuation interest or component if defined benefit factors:

(a) are only used to calculate death or invalidity benefits in respect of the interest or component; and
(b) would not be used to calculate benefits in respect of the interest or component that would become payable in other circumstances, such as on age retirement or the termination of employment.

Note 2: However, subregulation (2) does not prevent a superannuation interest or component mentioned in paragraph (1)(c) being a defined benefit interest for the purposes of these Regulations (even if paragraph (1)(a) or (b) could also apply to the superannuation interest or component).

Note: Example 1: Benefits in respect of a superannuation interest of a member spouse are payable on retirement based on the balance of the member’s account. However, on death or invalidity the benefit is to be defined by reference to amounts or factors mentioned in subregulation (1A). The member retires on invalidity and the benefits that become payable to the member are then defined by reference to those amounts or factors. The superannuation interest is not a defined benefit interest because defined benefit factors only applied, and could only have applied, in the circumstance of the death or invalidity of the member spouse.

Note: Example 2: Benefits in respect of a component of a superannuation interest of a member spouse are payable in a range of circumstances, including death, invalidity or retirement, and are to be defined by reference to amounts or factors mentioned in subregulation (1A). The component is a defined benefit interest because death or invalidity are not the only circumstances in which defined benefit factors are, or could be, applied to calculate the benefits in respect of the interest.

6 Meaning of growth phase—superannuation interests in regulated superannuation funds, approved deposit funds and RSAs

(1) This regulation applies to a superannuation interest of a member spouse in any of the following eligible superannuation plans: (a) a regulated superannuation fund; (b) an approved deposit fund; (c) an RSA. (2) For these Regulations, the superannuation interest is taken to be in the growth phase at a particular date if the member spouse satisfies the requirements of subregulation (3), (4) or (5) at that date. (3) A member spouse satisfies the requirements of this subregulation at a particular date if the member spouse has not satisfied a relevant condition of release at that date. (4) A member spouse satisfies the requirements of this subregulation at a particular date if the member spouse has satisfied a relevant condition of release at that date, but no benefit has been paid in respect of the superannuation interest, and no action has been taken by or for the member spouse under the governing rules of the plan to cash any benefit that the member spouse is entitled to be paid as a result of satisfying the condition of release. (5) A member spouse satisfies the requirements of this subregulation at a particular date if: (a) the member spouse has satisfied a relevant condition of release at that date; and (b) a benefit (other than a benefit that is paid as a pension) has been paid to or for the benefit of the member spouse or, if the member spouse has died, to his or her legal personal representative, but no action has been taken by or for the member spouse, or his or her legal personal representative, under the governing rules of the plan to receive any other benefit that the member spouse, or his or her estate, is entitled to be paid as a result of satisfying the condition of release. (6) In this regulation:

relevant condition of release means:

(a) for a member spouse who has a superannuation interest in a regulated superannuation fund—a condition of release mentioned in item 101, 102, 103, 106 or 108 of Schedule 1 to the SIS Regulations; and
(b) for a member spouse who has a superannuation interest in an approved deposit fund—a condition of release mentioned in item 201, 202, 203 or 206 of Schedule 1 to the SIS Regulations; and
(c) for a member spouse who has a superannuation interest in an RSA—a condition of release mentioned in item 101, 102, 103, 106 or 107 of Schedule 2 to the RSA Regulations.

7 Meaning of growth phase—superannuation interests in other eligible superannuation plans

(1) This regulation applies to a superannuation interest of a member spouse in any of the following eligible superannuation plans: (a) a superannuation annuity; (b) a superannuation fund other than a regulated superannuation fund. (2) For these Regulations, the superannuation interest is taken to be in the growth phase at a particular date if, at that date: (a) a releasing event in relation to the member spouse has not occurred; or (b) a releasing event in relation to the member spouse has occurred, but no action has been taken by or for the member spouse under the governing rules of the plan to receive any benefit that the member spouse is entitled to be paid as a result of the occurrence of the releasing event; or (c) a releasing event in relation to the member spouse has occurred and a benefit (other than a benefit that is paid as a pension) has been paid to or for the benefit of the member spouse or, if the member spouse has died, to his or legal personal representative, but no action has been taken by or for the member spouse, or his or her legal personal representative, under the governing rules of the plan to receive any other benefit that the member spouse, or his or her estate, is entitled to be paid as a result of the occurrence of the releasing event. (3) For this regulation, a releasing event is taken to have occurred in relation to a member spouse if: (a) the member spouse has retired; or (b) the member spouse has died; or (c) as a result of the member spouse’s ill health (whether physical or mental), the member spouse: (i) has ceased to be gainfully employed (including if the member spouse has ceased temporarily to receive any gain or reward under a continuing arrangement for the member spouse to be gainfully employed); and (ii) is unlikely, because of the ill health, ever again to engage in gainful employment for which the member spouse is reasonably qualified by education, training or experience; or (d) the member spouse has turned 65; or (e) in the case of a member spouse whose employer has contributed to the member spouse’s eligible superannuation plan in relation to the member spouse—the member spouse has ceased his or her employment with the employer. (4) In paragraph (3)(e):

employer includes any associates, within the meaning of section 12 of the SIS Act, of the employer.

8 Meaning of payment phase

For these Regulations, a superannuation interest (other than a small superannuation accounts interest) of a member spouse in an eligible superannuation plan is taken to be in the payment phase at a particular date if the superannuation interest is not in the growth phase at that date.

9 Meaning of partially vested accumulation interest

(1) For these Regulations, an accumulation interest that a member spouse has as a member of an eligible superannuation plan is a partially vested accumulation interest if subregulation (2) or (3) applies in relation to the interest. (2) This subregulation applies in relation to the superannuation interest if the withdrawal benefit in relation to the member spouse at a particular date is less than the total amount notionally or actually allocated to the member spouse at that date, except if the withdrawal benefit is less than that notional or actual amount because of any of the following reasons: (a) the trustee of the plan has been assessed to be liable to pay superannuation contributions surcharge in respect of the member spouse, and the trustee has not debited the amount notionally or actually allocated to the member spouse in respect of that liability; (b) insurance costs have been charged against the member spouse’s benefits in the plan; (c) any other fees, taxes or charges will be charged against the member spouse’s benefits when the member spouse ceases to be a member of the plan. (3) This subregulation applies in relation to the superannuation interest if the benefits to which the member spouse is or may be entitled, on voluntarily ceasing to be a member of the eligible superannuation plan, may include an additional benefit that is calculated by reference to the amount that has been credited, under the governing rules of the plan, to the member spouse in respect of contributions that have been made by, or in respect of, the member spouse.

9A Meaning of percentage‑only interest (Act s 90XD, s 90YD)

(1) Subject to subregulation (2), for the definitions of percentage‑only interest in sections 90XD and 90YD of the Act, each of the following superannuation interests is prescribed: (b) a superannuation interest in the scheme constituted by the Judges’ Pensions Act 1953 (NSW); (c) a superannuation interest to which regulation 9B applies; (ca) a superannuation interest in the scheme constituted by the Judges (Pensions and Long Leave) Act 1957 (Qld); (cb) a superannuation interest in the scheme constituted by the Governors (Salary and Pensions) Act 2003 (Qld); (d) a superannuation interest in the scheme constituted by the Judges’ Contributory Pensions Act 1968 (Tas); (e) a superannuation interest in the Parliamentary Retiring Benefits Fund continued, under regulation 50 of the Retirement Benefits (Parliamentary Superannuation) Regulations 2012 (Tas), as a subfund of the Retirement Benefits Fund; (f) a superannuation interest in a superannuation annuity. (2) A superannuation interest mentioned in paragraph (1)(ca), (d) or (e) is not a percentage‑only interest if, immediately before the commencement day of the paragraph in which the interest is mentioned: (a) either: (i) the interest is covered by a superannuation agreement or a flag lifting agreement that is in force and provides for a payment split; or (ii) the interest is an interest to which subsection 90XJ(5) or 90YN(5) of the Act applies; or (b) the interest is covered by a splitting order; or (c) the non‑member spouse has served a waiver notice on the trustee under section 90XZA or 90YZQ of the Act in respect of the interest. (3) Subregulation (2) applies only in relation to the agreement, order or notice. (4) In subregulation (2):

commencement day, for a paragraph in which a superannuation interest is mentioned, means:

(a) for paragraph (1)(ca)—the day on which that paragraph commenced; and
(b) for paragraphs (1)(d) and (e)—2 May 2003.

9B Meaning of percentage‑only interest—parliament 70 category under the Deed

(1) This regulation applies to a superannuation interest held by a person by belonging to the parliament 70 category under Chapter 9 of the Government Division Rules if: (a) the interest is held by a person who has received salary as a member of the Assembly for an aggregate period of less than 8 years; or (b) all of the following apply: (i) the interest is held by a person who has received salary as a member of the Assembly for an aggregate period of at least 8 years; (ii) after the person first began receiving salary as a member but before the person had completed an aggregate period of service of at least 8 years, the interest became subject to a payment split; (iii) subregulation (2) does not apply to the payment split; or (c) all of the following apply: (i) the interest is a percentage‑only interest under paragraph (b) or this paragraph; (ii) while the interest is a percentage‑only interest under either of those paragraphs, the interest becomes subject to a second or later payment split; (iii) subregulation (2) does not apply to at least 1 of the payment splits in relation to the interest. (2) This subregulation applies to a payment split if: (a) for a payment split under a superannuation agreement or flag lifting agreement—the agreement has been terminated or set aside; or (b) for a payment split under a splitting order—the order has been set aside; or (c) an amount has been paid under subsection 363(2) of the Participation Schedule or subsection 25G(2) of the repealed Act in relation to the entitlement under the applicable superannuation agreement, flag lifting agreement or splitting order; or (d) the person for whose benefit the applicable superannuation agreement, flag lifting agreement or splitting order was made has elected to be paid a lifetime pension under subsection 367(4) of the Participation Schedule or subsection 25K(4) of the repealed Act in relation to the entitlement under the agreement or order. (3) In this regulation:

Assembly means the Legislative Assembly of Queensland.

repealed Act means the Parliamentary Contributory Superannuation Act 1970 (Qld).

10 Meaning of trustee (Act s 90XD, s 90YD)

(1) This regulation applies for paragraph (b) of the definitions of trustee in sections 90XD and 90YD of the Act. (2) Each of the following persons is identified as a trustee of the Judges’ Pensions Act Scheme: (a) the General Manager of Fair Work Australia for a member of the Scheme who is: (i) the President (or a former President) of Fair Work Australia; or (ii) a Deputy President (or a former Deputy President) of Fair Work Australia who was a Presidential Member of the Australian Industrial Relations Commission; or (iii) a former Presidential Member of the Australian Industrial Relations Commission; or (iv) a spouse of a person mentioned in subparagraph (i), (ii), or (iii); (b) in relation to any other member of the Scheme—the Secretary of the Department of Finance and Deregulation. (3) The Parliamentary Retiring Allowances Trust established under the Parliamentary Contributory Superannuation Act 1948 is identified as the trustee of the scheme constituted by that Act. (4) An RSA provider that has accepted contributions to an RSA is identified as the trustee of that RSA. (5) The Commissioner of Taxation is identified as the trustee of an account within the meaning of the Small Superannuation Accounts Act 1995. (5A) An annuity provider that has entered into a contract with a person to provide a superannuation annuity to that person is identified as the trustee of that superannuation annuity. (5B) CSC is identified as the trustee of the scheme constituted by the Defence Force (Superannuation) (Productivity Benefit) Determination 1988 made under subsection 52(1) of the Defence Act 1903. (6) In this regulation:

CSC has the meaning given by section 4 of the Governance of Australian Government Superannuation Schemes Act 2011.

Presidential Member has the meaning given by section 4 of the Workplace Relations Act 1996.

RSA provider has the same meaning as in the Retirement Savings Accounts Act 1997.

10A Meaning of unflaggable interest (Act s 90XD, s 90YD)

For the definitions of unflaggable interest in sections 90XD and 90YD of the Act, a superannuation interest of a member spouse that is in the payment phase is prescribed.

11 Meaning of unsplittable interest (Act s 90XD, 90YD)

(1) Subject to subregulation (2), for the definitions of unsplittable interest in sections 90XD and 90YD of the Act, a superannuation interest of a member spouse described in subregulation (1A) or (1B) is prescribed.

Note: This regulation prescribes the kinds of superannuation interests that are unsplittable interests. An unsplittable interest cannot be the subject of a payment split under a superannuation agreement, a flag lifting agreement or a splitting order: see Parts VIIIB and VIIIC of the Act.

(1A) For subregulation (1), the superannuation interest of the member spouse must be: (a) an interest other than one in respect of which the whole or remaining part of the benefits are being paid to the member spouse as: (i) a lifetime pension or fixed‑term pension that the member is no longer entitled to commute; or (ii) a lifetime annuity or fixed‑term annuity; and (b) an interest with a withdrawal benefit in relation to the member spouse of less than $5 000. (1B) For subregulation (1), the superannuation interest of the member spouse must be an interest in respect of which: (a) the whole or remaining part of the benefits are being paid to the member spouse as: (i) a lifetime pension or fixed‑term pension that the member is no longer entitled to commute; or (ii) a lifetime annuity or fixed‑term annuity; and (b) the amount of the annual benefit payable to the member is less than $2 000. (2) This regulation does not apply to any of the following superannuation interests: (a) a superannuation interest in the Judges’ Pensions Act Scheme; (b) a superannuation interest in the scheme provided under the Judges’ Pensions Act 1971 of South Australia; (c) a superannuation interest in the scheme constituted by the Parliamentary Contributory Superannuation Act 1948. (3) To avoid doubt, an interest that is not covered by this regulation is not an unsplittable interest only because payments in respect of that interest are not splittable payments.

11A Meaning of lifetime pension etc.

To avoid doubt, for the purposes of these Regulations, a benefit in respect of a superannuation interest, or a component of a superannuation interest, of a member spouse in an eligible superannuation plan that is paid as a pension is not prevented from being a lifetime pension of the member spouse, or a pension payable for the life of a member spouse, merely because: (a) the benefit is paid upon the retirement of the member spouse (including, but not limited to, retirement on the basis of invalidity); and (b) under the governing rules of the plan, the payments may be varied (including by being reduced to nil), suspended or cancelled.