Social Security (Family Law Affected Income Streams) (FaHCSIA) Principles 2011
Commonwealth Coat of Arms of Australia
Social Security (Family Law Affected Income Streams) (FaHCSIA) Principles 2011
made under section 1099DD and subsection 1120A (5) of the
Social Security Act 1991
Compilation No. 1
Compilation date: 1 July 2019
Includes amendments up to: F2019L00836
Registered: 30 July 2019
About this compilation
This compilation
This is a compilation of the Social Security (Family Law Affected Income Streams) (FaHCSIA) Principles 2011 that shows the text of the law as amended and in force on 1 July 2019 (the compilation date).
The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law.
Uncommenced amendments
The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law.
Application, saving and transitional provisions for provisions and amendments
If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes.
Editorial changes
For more information about any editorial changes made in this compilation, see the endnotes.
Modifications
If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law.
Self‑repealing provisions
If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes.
Contents
Part 1 Preliminary 1
1.1 Name of Principles 1
1.3 Definitions 1
1.4 Purpose 3
Part 2 Income from asset-test exempt income streams 4
2.1 Application of Part 4
2.2 Income stream that is not a defined benefit income stream 4
2.3 Income stream that is a defined benefit income stream 4
Part 3 Income from asset-tested income streams (long term) 5
3.1 Application of Part 5
3.2 Income stream that is not a defined benefit income stream 5
3.3 Income stream that is a defined benefit income stream 5
Part 4 Asset value of asset-tested income streams (other than lifetime) 6
4.1 Application of Part 6
4.2 Income stream that is not a defined benefit income stream 6
4.3 Income stream that is a defined benefit income stream 6
Part 5 Income from asset-tested income streams (lifetime) 7
5.1 Application of Part 7
5.2 Income stream that is a family law affected income stream that is an asset-tested income stream (lifetime) 7
Part 6 Asset value of asset-tested income streams (lifetime) 8
6.1 Application of Part 8
6.2 Income stream that is a family law affected income stream that is an asset-tested income stream (lifetime) 8
Schedule 1 Matters to which the Secretary must have regard 9
Endnotes 12
Endnote 1—About the endnotes 12
Endnote 2—Abbreviation key 13
Endnote 3—Legislation history 14
Endnote 4—Amendment history 15
Endnote 5—Editorial changes 16
Part 1 Preliminary
1.1 Name of Principles
These Principles are the Social Security (Family Law Affected Income Streams) (FaHCSIA) Principles 2011.
1.3 Definitions
(1) In these Principles:
Act means the Social Security Act 1991.
allocated pension has the meaning given by regulation 3 of the Family Law (Superannuation) Regulations 2001.
assessment day for a person’s family law affected income stream means:
(a) for an income stream that reverted to the person as a reversionary benefit—the person’s assessment day as defined in subsection 1120AB(7) of the Act;
(b) otherwise—the person’s assessment day as defined in subsection 1120AB(6) of the Act.
asset value has the meaning given by regulation 3A.05 of the SIS Regulations.
base amount allocated to the non-member spouse has the meaning given by regulation 45 of the Family Law (Superannuation) Regulations 2001.
base amount payment split has the meaning given by subregulation 1.03 (1) of the SIS Regulations.
market linked pension has the meaning given by regulation 3 of the Family Law (Superannuation) Regulations 2001.
percentage payment split has the meaning given by subregulation 1.03 (1) of the SIS Regulations.
purchase amount, for a person’s family law affected income stream means:
(a) in relation to a day that is before the person’s assessment day for the income stream—the purchase amount for the income stream as defined in subsection 1120AA(4) of the Act;
(b) in relation to a day that is on or after the person’s assessment day for the income stream—the purchase amount for the income stream as defined in subsection 1120AB(12) of the Act.
reversionary partner has the meaning given by subsection 9B (6) of the Act.
SIS Regulations means the Superannuation Industry (Supervision) Regulations 1994.
threshold day for a person’s family law affected income stream means:
(a) for an income stream that reverted to the person as a reversionary benefit—the person’s threshold day as defined in subsection 1120AB(10) of the Act;
(b) otherwise—the person’s threshold day worked out using the method statement in subsection 1120AB(9) of the Act.
Note 1 The definitions of assessment day, purchase amount and threshold day adopt formula and calculation methods in sections 1120AA and 1120AB of the Act for the purpose of defining terms as they are used in these Principles. Sections 1120AA and 1120AB of the Act do not apply to family law affected income streams.
Note 2 Several other words and expressions used in these Principles have the meaning given in Part 1.2 of the Act. For example:
Note: asset-test exempt income stream (subsection 9(1) and sections 9A, 9B and 9BA)
Note: asset-tested income stream (long term) (subsection 9(1))
Note: asset-tested income stream (lifetime) (subsection 9(1) and 9E)
Note: commencement day (subsection 9(1))
Note: deductible amount (subsection 9(1))
Note: defined benefit income stream (subsection 9(1) and subsection (1F))
Note: family law affected income stream (subsection 9(1) and section 9C)
Note: income (subsection 8(1))
Note: income stream (subsection 9(1))
Note: original family law affected income stream (subsection 9(1) and section 9C)
Note: primary FLA income stream (subsection 9(1) and section 9C)
Note: purchase price (subsection 9(1))
Note: relevant number (subsection 9(1))
Note: residual capital value (subsection 9(1))
Note: secondary FLA income stream (subsection 9(1) and section 9C)
Note: superannuation fund (subsection 9(1)).
(2) A term used in these Principles and in Part VIIIB of the Family Law Act 1975 has the same meaning in these Principles as it has in that Part.
Note See section 90XD of the Family Law Act 1975 for the meanings of the following terms:
Note: flag lifting agreement
Note: member spouse
Note: non-member spouse
Note: operative time
Note: payment split
Note: reversionary beneficiary
Note: RSA
Note: splittable payment
Note: splitting order
Note: superannuation agreement
Note: superannuation interest
Note: trustee.
1.4 Purpose
These Principles set out decision-making principles with which the Secretary must comply in making decisions under the following provisions of the Act:
(a) paragraph 1099DB (1) (a);
(b) paragraph 1099DB (1) (b);
(c) paragraph 1099DC (1) (a);
(d) paragraph 1099DC (1) (b);
(da) subsection 1099DCA(1);
(e) subsection 1120A (2);
(f) subsection 1120A (3).
Part 2 Income from asset-test exempt income streams
2.1 Application of Part
This Part applies to a family law affected income stream that is an asset-test exempt income stream.
2.2 Income stream that is not a defined benefit income stream
(1) This section applies if the family law affected income stream is not a defined benefit income stream.
(2) For paragraph 1099DD (a) of the Act, the Secretary must have regard to the following matters in making decisions under paragraph 1099DB (1) (a) of the Act:
(a) the matters mentioned in items 1 to 10 and 14 to 23 of Schedule 1;
(b) any other matter that the Secretary considers relevant in the circumstances.
(3) If payments are being made from the income stream under more than 1 payment split, the Secretary must have regard to each matter mentioned in subsection (2) that applies to each payment split.
2.3 Income stream that is a defined benefit income stream
(1) This section applies if the family law affected income stream is a defined benefit income stream.
(2) For paragraph 1099DD (b) of the Act, the Secretary must have regard to the following matters in making decisions under paragraph 1099DB (1) (b) of the Act:
(a) the matters mentioned in items 1 to 12 and 14 to 23 of Schedule 1;
(b) any other matter that the Secretary considers relevant in the circumstances.
(3) If payments are being made from the income stream under more than 1 payment split, the Secretary must have regard to each matter mentioned in subsection (2) that applies to each payment split.
Part 3 Income from asset-tested income streams (long term)
3.1 Application of Part
This Part applies to a family law affected income stream that is an asset‑tested income stream (long term).
3.2 Income stream that is not a defined benefit income stream
(1) This section applies if the family law affected income stream is not a defined benefit income stream.
(2) For paragraph 1099DD (c) of the Act, the Secretary must have regard to the following matters in making decisions under paragraph 1099DC (1) (a) of the Act:
(a) the matters mentioned in items 1 to 10 and 13 to 23 of Schedule 1;
(b) any other matter that the Secretary considers relevant in the circumstances.
(3) If payments are being made from the income stream under more than 1 payment split, the Secretary must have regard to each matter mentioned in subsection (2) that applies to each payment split.
3.3 Income stream that is a defined benefit income stream
(1) This section applies if the family law affected income stream is a defined benefit income stream.
(2) For paragraph 1099DD (d) of the Act, the Secretary must have regard to the following matters in making decisions under paragraph 1099DC (1) (b) of the Act:
(a) the matters mentioned in items 1 to 23 of Schedule 1;
(b) any other matter that the Secretary considers relevant in the circumstances.
(3) If payments are being made from the income stream under more than 1 payment split, the Secretary must have regard to each matter mentioned in subsection (2) that applies to each payment split.
Part 4 Asset value of asset-tested income streams (other than lifetime)
4.1 Application of Part
This Part applies to a family law affected income stream that is an asset‑tested income stream (long term) or an asset-tested income stream (short term).
4.2 Income stream that is not a defined benefit income stream
(1) This section applies if the family law affected income stream is not a defined benefit income stream.
(2) For paragraph 1120A (5) (a) of the Act, the Secretary must have regard to the following matters in making decisions under subsection 1120A (2) of the Act:
(a) the matters mentioned in items 1 to 23 of Schedule 1;
(b) any other matter that the Secretary considers relevant in the circumstances.
(3) If payments are being made from the income stream under more than 1 payment split, the Secretary must have regard to each matter mentioned in subsection (2) that applies to each payment split.
4.3 Income stream that is a defined benefit income stream
(1) This section applies if the family law affected income stream is a defined benefit income stream.
(2) For paragraph 1120A (5) (b) of the Act, the Secretary must have regard to the following matters in making decisions under subsection 1120A (3) of the Act:
(a) the matters mentioned in items 1 to 23 of Schedule 1;
(b) any other matter that the Secretary considers relevant in the circumstances.
(3) If payments are being made from the income stream under more than 1 payment split, the Secretary must have regard to each matter mentioned in subsection (2) that applies to each payment split.
Part 5 Income from asset-tested income streams (lifetime)
5.1 Application of Part
This Part applies to a family law affected income stream that is an asset-tested income stream (lifetime).
5.2 Income stream that is a family law affected income stream that is an asset-tested income stream (lifetime)
(1) For paragraph 1099DD(e) of the Act, the Secretary must have regard to the following matters in making decisions under subsection 1099DCA(1) of the Act:
(a) the matters mentioned in items 1 to 4 and 14 to 23 of Schedule 1;
(b) any other matter that the Secretary considers relevant in the circumstances.
(2) If payments are being made from the income stream under more than 1 payment split, the Secretary must have regard to each matter mentioned in subsection (1) that applies to each payment split.
Part 6 Asset value of asset-tested income streams (lifetime)
6.1 Application of Part
This Part applies to a family law affected income stream that is an asset-tested income stream (lifetime).
6.2 Income stream that is a family law affected income stream that is an asset-tested income stream (lifetime)
(1) For paragraph 1120A(5)(a) of the Act, the Secretary must have regard to the following matters in making decisions under subsection 1120A(2) of the Act:
(a) the matters mentioned in items 1 to 4 and 14 to 25 of Schedule 1;
(b) any other matter that the Secretary considers relevant in the circumstances.
(2) If payments are being made from the income stream under more than 1 payment split, the Secretary must have regard to each matter mentioned in subsection (1) that applies to each payment split.
Schedule 1 Matters to which the Secretary must have regard
(paragraphs 2.2 (2) (a), 2.3 (2) (a), 3.2 (2) (a), 3.3 (2) (a), 4.2 (2) (a)
and 4.3(2)(a), 5.2(1)(a) and 6.2(1)(a))
| Item | Matter to which the Secretary must have regard |
|---|---|
| 1 | The commencement day of the original family law affected income stream |
| 2 | The operative time for the payment split under the superannuation agreement, flag lifting agreement or court order |
| 3 | The date when the first splittable payment became payable in respect of the original family law affected income stream of the member spouse |
| 4 | The amount payable to the member spouse from the original family law affected income stream immediately before the operative time for the payment split |
| 5 | The purchase price of the original family law affected income stream at its commencement day |
| 6 | The relevant number in relation to the original family law affected income stream at its commencement day |
| 7 | The term (if any) that applies to the original family law affected income stream at its commencement day |
| 8 | The amount of the initial annual payment from the original family law affected income stream at its commencement day |
| 9 | The indexation rate (if any) that applies to payments from the original family law affected income stream at its commencement day |
| 10 | Details of the primary beneficiary’s reversionary partner (if any) or any reversionary beneficiaries for the original family law affected income stream at its commencement day |
| 11 | The deductible amount for the original family law affected income stream at its commencement day |
| 12 | Details of the entitlement of each of the member spouse and the non-member spouse under the payment split for the deductible amount |
| 13 | The residual capital value (if any) of the original family law affected income stream at its commencement day |
| 14 | The asset value of the original family law affected income stream immediately before the operative time for the payment split |
| 15 | The asset value of the original family law affected income stream immediately before the first splittable payment became payable |
| 16 | The amount of the payment to the non-member spouse from the original family law affected income stream immediately before the first splittable payment became payable for the member spouse’s superannuation interest after the operative time for the payment split |
| 17 | The amount payable to the member spouse from the primary FLA income stream |
| 18 | The amount payable to the non-member spouse from the secondary FLA income stream |
| 19 | If the original family law affected income stream, the primary FLA income stream or the secondary FLA income stream is commuted — the total commuted amount |
| 20 | If the payment split is a percentage payment split — the amount of the first splittable payment made from the original family law affected income stream after the operative time for the payment split |
| 21 | If the payment split is a percentage payment split — the percentage of the splittable payment that each of the member spouse and non-member spouse is entitled to be paid under the payment split |
| 22 | If the payment split is a base amount payment split:(a) the value of the base amount allocated to the non-member spouse for the non-member spouse’s entitlement under the payment split; and(b) the value of the superannuation interest, being:(i) if a splitting order applies to the superannuation interest — the value determined by the court; or(ii) if a superannuation agreement applies to the superannuation interest — the value provided by the trustee of the superannuation fund from which the income stream was acquired or purchased; and |
| (c) details of any amounts of income paid from the original family law affected income stream on or after the operative time for the payment split and before the time of the first splittable payment for the payment split; and | |
| (d) the amount of the first splittable payment from the original family law affected income stream after the operative time for the payment split; and | |
| (e) the proportion of the first splittable payment paid to each of the member spouse and the non-member spouse from the original family law affected income stream after the operative time for the payment split; and(f) details of any second and subsequent payments to the non-member spouse from the original family law affected income stream, after the first splittable payment is made, to give effect to the non-member spouse’s entitlement under the payment split, including lump sum payments and amounts paid from the secondary FLA income stream; and | |
| (g) details of any payments to the member spouse from the primary FLA income stream; and | |
| (h) if the income stream is paid as an allocated pension or a market linked pension:(i) the value of the original family law income stream immediately before the time of the first splittable payment for the payment split; and(ii) the value of the first splittable payment for the payment split to the non-member spouse from the original family law income stream; and(iii) the value of the primary FLA income stream immediately after the payment split | |
| 23 | If the non-member spouse’s entitlement under the payment split is satisfied by the creation of a new interest for the non-member spouse, or the rollover or transfer to another superannuation fund or RSA of an amount to be held for the benefit of the non-member spouse:(a) the amount of the first payment to the member spouse from the primary FLA income stream after the new interest is created, or the amount is rolled over or transferred; and |
| (b) the amount that would have been payable to the member spouse from the original family law affected income stream if the new interest had not been created, or the amount had not been rolled over or transferred; and | |
| (c) for an entitlement being paid as an allocated pension — the value of the member spouse’s entitlement from the original family law affected income stream immediately before the new interest was created, or the amount was rolled over or transferred | |
| 24 | If the member spouse has reached the assessment day in relation to the original family law affected income stream: |
| (a) the member spouse’s assessment day in relation to the original family law affected income stream; and(b) the purchase amount of the original family law affected income stream; and(c) the member spouse’s threshold day in relation to the original family law affected income stream. | |
| 25 | If the member spouse has not reached the assessment day in relation to the original family law affected income stream:(a) whether the non-member spouse has reached their assessment day in relation to the secondary FLA income stream; and(b) whether the non-member spouse has reached their threshold day in relation to the secondary FLA income stream; and(c) the purchase amount of the original family law affected income stream. |
Note: Endnotes
Note: Endnote 1—About the endnotes
The endnotes provide information about this compilation and the compiled law.
The following endnotes are included in every compilation:
Endnote 1—About the endnotes
Endnote 2—Abbreviation key
Endnote 3—Legislation history
Endnote 4—Amendment history
Abbreviation key—Endnote 2
The abbreviation key sets out abbreviations that may be used in the endnotes.
Legislation history and amendment history—Endnotes 3 and 4
Amending laws are annotated in the legislation history and amendment history.
The legislation history in endnote 3 provides information about each law that has amended (or will amend) the compiled law. The information includes commencement details for amending laws and details of any application, saving or transitional provisions that are not included in this compilation.
The amendment history in endnote 4 provides information about amendments at the provision (generally section or equivalent) level. It also includes information about any provision of the compiled law that has been repealed in accordance with a provision of the law.
Editorial changes
The Legislation Act 2003 authorises First Parliamentary Counsel to make editorial and presentational changes to a compiled law in preparing a compilation of the law for registration. The changes must not change the effect of the law. Editorial changes take effect from the compilation registration date.
If the compilation includes editorial changes, the endnotes include a brief outline of the changes in general terms. Full details of any changes can be obtained from the Office of Parliamentary Counsel.
Misdescribed amendments
A misdescribed amendment is an amendment that does not accurately describe the amendment to be made. If, despite the misdescription, the amendment can be given effect as intended, the amendment is incorporated into the compiled law and the abbreviation “(md)” added to the details of the amendment included in the amendment history.
If a misdescribed amendment cannot be given effect as intended, the abbreviation “(md not incorp)” is added to the details of the amendment included in the amendment history.
Note: Endnote 2—Abbreviation key
| ad = added or inserted | o = order(s) |
|---|---|
| am = amended | Ord = Ordinance |
| amdt = amendment | orig = original |
| c = clause(s) | par = paragraph(s)/subparagraph(s) |
| C[x] = Compilation No. x | /sub‑subparagraph(s) |
| Ch = Chapter(s) | pres = present |
| def = definition(s) | prev = previous |
| Dict = Dictionary | (prev…) = previously |
| disallowed = disallowed by Parliament | Pt = Part(s) |
| Div = Division(s) | r = regulation(s)/rule(s) |
| ed = editorial change | reloc = relocated |
| exp = expires/expired or ceases/ceased to have | renum = renumbered |
| effect | rep = repealed |
| F = Federal Register of Legislation | rs = repealed and substituted |
| gaz = gazette | s = section(s)/subsection(s) |
| LA = Legislation Act 2003 | Sch = Schedule(s) |
| LIA = Legislative Instruments Act 2003 | Sdiv = Subdivision(s) |
| (md) = misdescribed amendment can be given | SLI = Select Legislative Instrument |
| effect | SR = Statutory Rules |
| (md not incorp) = misdescribed amendment | Sub‑Ch. = Sub‑Chapter(s) |
| cannot be given effect | SubPt = Subpart(s) |
| mod = modified/modification | underlining = whole or part not |
| No. = Number(s) | commenced or to be commenced |
Note: Endnote 3—Legislation history
| Name | Registration | Commencement | Application, saving and transitional provisions |
|---|---|---|---|
| Social Security (Family Law Affected Income Streams) (FaHCSIA) Principles 2011 | 28 Nov 2011 (F2011L02460) | 29 Nov 2011 (s 1.2) | |
| Social Security Amendment (Family Law Affected Income Streams) Principles 2019 | 18 June 2019 (F2019L00836) | 1 July 2019 (s 2(1) item 1) | — |
Note: Endnote 4—Amendment history
| Provision affected | How affected |
|---|---|
| Part 1 | |
| s 1.2.................... | rep LA s 48D |
| s 1.3.................... | am F2019L00836 |
| s 1.4.................... | am F2019L00836 |
| Part 4 | |
| Part 4 heading............. | rs F2019L00836 |
| Part 5 | |
| Part 5 heading............. | ed C1 |
| Part 5................... | ad F2019L00836 |
| s 5.1.................... | ad F2019L00836 |
| s 5.2.................... | ad F2019L00836 |
| Part 6 | |
| Part 6................... | ad F2019L00836 |
| s 6.1.................... | ad F2019L00836 |
| s 6.2.................... | ad F2019L00836 |
| Schedule 1 | |
| Schedule 1 heading.......... | am F2019L00836 |
| Schedule 1................ | am F2019L00836 |
Note: Endnote 5—Editorial changes
In preparing this compilation for registration, the following kinds of editorial change(s) were made under the Legislation Act 2003.
Part 5 (heading)
Kind of editorial change
Removal of redundant text
Details of editorial change
Schedule 1 item 6 of the Social Security Amendment (Family Law Affected Income Streams) Principles 2019 instructs to insert Parts 5 and 6 after Part 4.
The newly inserted Part 5 heading reads as follows:
Part 5 Income from of asset-tested income streams (lifetime)
This compilation was editorially changed to omit the redundant word “of” from the heading to Part 5.