(ii) if there has been no such nomination by the non‑member spouse—consider whether it would be in the best interests of the non‑member spouse to pay the amount to which the non‑member spouse is entitled to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
(4) If subparagraph (2)(b)(ii) or paragraph (2)(c) applies, the trustee must:
(a) if the non‑member spouse asks the trustee to pay the amount to which the non‑member spouse is entitled to the non‑member spouse—pay the amount to which the non‑member spouse is entitled; or
(b) in any other case:
(i) roll over or transfer the amount to which the non‑member spouse is entitled to another regulated superannuation fund, approved deposit fund, EPSSS or RSA nominated by the non‑member spouse; or
(ii) if there has been no such nomination by the non‑member spouse—consider whether it would be in the best interests of the non‑member spouse to pay the amount to which the non‑member spouse is entitled to the Commissioner under section 22 of the Superannuation (Unclaimed Money and Lost Members) Act 1999.
Division 7A.4—Superannuation interest split under the Family Law (Superannuation) Regulations 2025
7A.19 Application
This Division applies if a trustee of a superannuation fund:
(a) creates a new interest in the fund for a non‑member spouse to satisfy Subdivision B of Division 3 of Part 3 of the Family Law (Superannuation) Regulations 2025; or
(b) transfers or rolls over to another superannuation fund or RSA an amount to be held for the benefit of a non‑member spouse to satisfy that Subdivision; or
(c) pays an amount to a non‑member spouse to satisfy that Subdivision.
7A.20 Creating a new interest
(1) This regulation applies if the trustee creates a new interest in the fund for the non‑member spouse.
(2) In creating the new interest:
(a) a proportion must be taken from the unrestricted non‑preserved benefits, the restricted non‑preserved benefits and the preserved benefits of the member spouse; and
(b) the proportion taken from each category of benefits must be the same as the category bears to the member spouse’s interest immediately before the interest was created.
(3) The benefits held in the new interest are unrestricted non‑preserved benefits, restricted non‑preserved benefits or preserved benefits in accordance with the character that they had in the member spouse’s interest.
7A.21 Rolling over or transferring benefits
(1) This regulation applies if the trustee rolls over or transfers to another superannuation fund or RSA an amount to be held for the benefit of the non‑member spouse.
(2) In rolling over or transferring the transferable benefits:
(a) a proportion must be taken from the unrestricted non‑preserved benefits, the restricted non‑preserved benefits and the preserved benefits of the member spouse; and
(b) the proportion taken from each category of benefits must be the same as the category bears to the member spouse’s interest immediately before the amount was rolled over or transferred.
(3) The benefits held in the new interest are unrestricted non‑preserved benefits, restricted non‑preserved benefits or preserved benefits in accordance with the character that the benefits had in the member spouse’s interest.
7A.22 Paying an amount
(1) This regulation applies if the trustee pays an amount to the non‑member spouse.
(2) In paying the amount to the non‑member spouse:
(a) a proportion must be taken from the unrestricted non‑preserved benefits, the restricted non‑preserved benefits and the preserved benefits of the member spouse; and
(b) the proportion taken from each category of benefits must be the same as the category bears to the member spouse’s interest immediately before the amount was paid.
Part 8—Financial reporting
8.01 Accounts—statement of financial position and financial statement
(1) For the purposes of paragraphs 35B(1)(a) and (b) of the Act (preparation of a statement of financial position and an operating statement), this regulation specifies cases where those paragraphs do not apply.
Defined benefit funds and accumulation funds that prepare certain statements
(2) Those paragraphs do not apply in the case of:
(a) a defined benefit fund in respect of a year of income of the fund; or
(b) an accumulation fund in respect of the 1994–1995 year of income of the fund;
if the trustee of the fund prepares:
(c) a statement of net assets of the entity; and
(d) a statement of changes in net assets of the entity;
in respect of that year of income.
Superannuation funds where benefits are determined by reference to a life assurance policy
(3) Those paragraphs do not apply in the case of a regulated superannuation fund in respect of a year of income of the fund if, at the end of the year, the fund is a fund from which the benefits paid to each individual member of the fund:
(a) are wholly determined by reference to policies of life assurance; or
(b) if paragraph (a) does not apply only because shares in the life insurance company issuing the policies were acquired because the company was demutualised:
(i) would otherwise be wholly determined by reference to policies of life assurance; and
(ii) the shares have been held for no longer than 18 months from the date of acquisition.
8.02 Accounts and statements that must be prepared
(1) This regulation is made for the purposes of paragraph 35B(1)(c) of the Act.
(2) Where, because of subregulation 8.01(3), paragraphs 35B(1)(a) and (b) of the Act do not apply in respect of a regulated superannuation fund in respect of a year of income, the accounts and statements mentioned in subregulation (3) are specified in respect of the fund in respect of that year of income.
(3) Those accounts and statements are:
(a) a statement that policies of the kinds mentioned in subregulation 8.01(3) are in place at the end of the year of income; and
(b) a statement as to whether those policies have been fully maintained as directed by the relevant insurers; and
(c) a statement of the identities of those insurers; and
(d) the amounts contributed by employers and members in respect of the year of income; and
(e) where not all of those amounts have been paid as premiums on the policies—the amount of premiums paid on the policies in respect of the year of income; and
(f) the expenses incurred by the fund in respect of the year of income, other than amounts covered by premiums.
8.02A Period within which an auditor must be appointed
For subsection 35C(1) of the Act, the prescribed period is not later than 45 days before the day by which section 35D of the Act requires a return to be lodged for the fund.
Note: See regulation 8.03 for the period within which a report mentioned in subsection 35C(6) of the Act must be provided.
8.02B Asset must be valued at market value
For subsection 35B(2) of the Act, for the year of income 2012–13 and any later year of income, when preparing accounts and statements required by subsection 35B(1) of the Act, an asset must be valued at its market value.
Note: Market value is defined in subsection 10(1) of the Act.
8.03 Period within which audit report must be given
For subsection 35C(6) of the Act, the period within which a report mentioned in that subsection must be given is 28 days after the trustee of the fund has provided all documents relevant to the preparation of the report to the auditor.
Part 9—Financial management of funds
Division 9.1—Introductory
9.01 Interpretation
In this Part:
funding and solvency certificate means a certificate required under regulation 9.09.
Division 9.2—Financial position of funds
9.02 Application
This Division applies only to superannuation entities other than:
(a) funds that are part of one of the following schemes:
(i) the scheme established by the Superannuation Act 1976;
(ii) the scheme established under the provisions of the Superannuation Act 1990;
(iii) the Military Superannuation and Benefits Scheme; and
(b) funds that are part of an exempt public sector superannuation scheme.
9.02A Interpretation
A reference in this Division to:
(a) benefits vested in a member of a fund; or
(b) aggregate benefit accounts of a member of a fund; or
(c) benefits accrued to a member of a fund; or
(d) obligations of a fund in respect of a member;
includes any amounts that would be payable to the member’s spouse or former spouse under a payment split.
9.03 Whether the financial position of a defined benefit fund may be about to become unsatisfactory—matters to consider
(1) For the purposes of subsection 130(6) or 130AA(11A) of the Act or subregulation 9.31(3) of these Regulations, in forming an opinion whether the financial position of a defined benefit fund may be about to become unsatisfactory, a person must consider whether, at the end of the 3‑year period immediately following the date at which the person’s calculations are done, the value of the assets of the fund is likely (based on the expectations referred to in subregulation (2)) to be inadequate to meet the value of such of the liabilities of the fund as relate to the benefits vested in the members of the fund.
(2) For the purposes of subregulation (1), the likelihood of the value of assets being inadequate must be based;
(a) if the person considering the matter is a superannuation actuary—on the actuary’s reasonable expectations; and
(b) if the person considering the matter is a superannuation auditor or lead auditor—on the reasonable expectation of a superannuation actuary on whose advice the auditor has relied in relation to the matter.
(3) Nothing in subregulations (1) and (2) is to be taken to affect the meaning of paragraph 130(1)(a) or 130AA(1)(a), (2)(a) or (4)(b) of the Act.
9.04 When the financial position of an entity is unsatisfactory
For the purposes of subsections 130(7) and 130AA(12) of the Act and subregulation 9.31(3), the financial position of an entity is treated as unsatisfactory if, in the opinion of a person performing an actuarial or audit function in relation to the entity:
(a) in the case of an entity that is a defined benefit fund—the value of the assets of the fund is inadequate to cover the value of the liabilities of the fund in respect of benefits vested in the members of the fund; and
(b) in the case of an entity that is an accumulation fund—either:
(i) the assets of the fund are inadequate to cover the aggregate benefit accounts of members of the fund; or
(ii) the value of the assets of the fund is inadequate to cover the value of the liabilities of the fund in respect of benefits accrued to members of the fund; and
(c) in the case of an entity that is an approved deposit fund—the assets of the fund are inadequate to cover the obligations of the fund in respect of members of the fund; and
(d) in the case of an entity that is a PST—the assets of the trust are inadequate to cover the obligations of the trust in respect of holders of units in the trust.
Division 9.2A—Size of defined benefit funds
9.04A Application
(1) This Division applies to:
(a) a defined benefit fund established after the commencement of this Division; and
(b) a fund that is converted to a defined benefit fund after the commencement of this Division; and
(c) a defined benefit fund that wishes to accept a new defined benefit member after the commencement of this Division; and
(d) a defined benefit fund that wishes to convert a member of the fund to a defined benefit member after the commencement of this Division.
(2) This Division does not apply to a fund that is part of:
(a) the scheme established by the Superannuation Act 1976; or
(b) the scheme established under the provisions of the Superannuation Act 1990; or
(c) the Military Superannuation and Benefits Scheme; or
(d) an exempt public sector superannuation scheme.
9.04B Sub‑funds to be treated as funds
A sub‑fund within a defined benefit fund is taken, for the purposes of this Division, to be a defined benefit fund if the sub‑fund satisfies the following conditions:
(a) the sub‑fund has separately identifiable assets and separately identifiable beneficiaries;
(b) the interest of each beneficiary of the sub‑fund is determined by reference only to the conditions governing that sub‑fund.
9.04C Operating standard
For subsection 31(1) of the Act, a requirement set out in this Division is a standard applicable to the operation of regulated superannuation funds that are defined benefit funds.
9.04D Size of defined benefit funds
(1) A defined benefit fund established after the commencement of this Division must have at least 50 defined benefit members.
(2) A fund that is converted to a defined benefit fund after the commencement of this Division must have at least 50 defined benefit members.
(3) A defined benefit fund may accept a new defined benefit member after the commencement of this Division only if the fund will have at least 50 defined benefit members after accepting the new defined benefit member.
(4) A defined benefit fund may convert a member of the fund to a defined benefit member after the commencement of this Division only if the fund will have at least 50 defined benefit members after converting the member to a defined benefit member.
Division 9.2B—Provision of defined benefit pensions
9.04E Definition for Division 9.2B
In this Division:
defined benefit pension means a pension under section 10 of the Act, other than:
(a) a pension wholly determined by reference to policies of life assurance purchased or obtained by the trustee of a regulated superannuation fund solely for the purposes of providing benefits to members of that fund; or
(b) an allocated pension; or
(c) a market linked pension; or
(d) an account‑based pension.
9.04F Application of Division 9.2B
(1) This Division applies to:
(a) a regulated superannuation fund established after the commencement of this Division, the governing rules of which provide for the payment of a defined benefit pension; and
(b) a regulated superannuation fund established before the commencement of this Division, the governing rules of which are amended after the commencement of this Division to provide for the payment of a defined benefit pension.
(2) This Division does not apply to a fund that is part of:
(a) the scheme established by the Superannuation Act 1976; or
(b) the scheme established under the provisions of the Superannuation Act 1990; or
(c) the Military Superannuation and Benefits Scheme; or
(d) an exempt public sector superannuation scheme.
9.04G Sub‑funds to be treated as funds
A sub‑fund within a regulated superannuation fund is taken, for the purposes of this Division, to be a regulated superannuation fund if the sub‑fund satisfies the following conditions:
(a) the sub‑fund has separately identifiable assets and separately identifiable beneficiaries;
(b) the interest of each beneficiary of the sub‑fund is determined by reference only to the conditions governing that sub‑fund.
9.04H Operating standard
For subsection 31(1) of the Act, a requirement set out in this Division is a standard applicable to the operation of regulated superannuation funds.
9.04I Provision of defined benefit pensions
(1) Subject to subregulation (3), a regulated superannuation fund that has less than 50 members must not provide a defined benefit pension.
(2) Subregulation (1) has effect despite anything in the governing rules of the fund.
(3) A regulated superannuation fund that has less than 50 members may provide a defined benefit pension only:
(a) to a person:
(i) who, on 11 May 2004, was a member of the fund; and
(ii) who, before 1 January 2006:
(A) retires (within the meaning of subregulation 6.01(7)) on or after attaining age 55; or
(B) attains age 65; and
(iii) who, after 11 May 2004 and before 1 January 2006, becomes entitled to be paid a defined benefit pension; and
(b) if the first pension payment is made within 12 months after the day when the person became entitled to the pension.
Division 9.3—Funding and solvency of defined benefit funds
9.05 Application
This Division applies only to defined benefit funds other than:
(a) funds that are part of one of the following schemes:
(i) the scheme established by the Superannuation Act 1976;
(ii) the scheme established under the provisions of the Superannuation Act 1990;
(iii) the Military Superannuation and Benefits Scheme;
(iv) the scheme established under the Superannuation (State Public Sector) Act 1990 (Qld); and
(b) funds that are part of an exempt public sector superannuation scheme; and
(c) funds that have never been used to reduce or remove the superannuation guarantee charge imposed by section 5 of the Superannuation Guarantee Charge Act 1992.
9.06 Interpretation
(1) In this Division:
certified minimum contributions, in relation to a fund, means the minimum contributions certified, in accordance with subregulation 9.10(1) or 9.18(9), in a funding and solvency certificate.
declared date, in relation to a defined benefit fund that is technically insolvent, means the date on which a superannuation actuary declares in writing in accordance with paragraph 9.16(1)(a) that the fund is technically insolvent.
effective date, in relation to a funding and solvency certificate, means the date specified in the certificate as the date on which the certificate takes effect.
expiry date, in relation to a funding and solvency certificate, means the date specified in the certificate as the date on which the certificate expires.
minimum benefit index, in relation to a defined benefit fund, means the index calculated in accordance with regulation 9.15.
notifiable event, in relation to a defined benefit fund, means:
(a) an amendment of the governing rules of the fund in a way that affects the level, or method of calculation, of the benefits of the fund; or