Federal Register of Legislation - Australian Government

Primary content

SLI 2005 No. 89 Regulations as made
These Regulations amend the Family Law (Superannuation) Regulations 2001 to support amendments to Part VIIIB of the Family Law Act 1975, made by the Family Law Amendment (Annuities) Act 2004, extending Part VIIIB to interests in superannuation-like annuity products.
Administered by: Attorney-General's
Registered 26 May 2005
Tabling HistoryDate
Tabled HR30-May-2005
Tabled Senate14-Jun-2005
Date of repeal 09 Apr 2013
Repealed by Attorney-General's (Spent and Redundant Instruments) Repeal Regulation 2013

Family Law (Superannuation) Amendment Regulations 2005 (No. 2)1

Select Legislative Instrument 2005 No. 89

I, PHILIP MICHAEL JEFFERY, Governor-General of the Commonwealth of Australia, acting with the advice of the Federal Executive Council, make the following Regulations under the Family Law Act 1975.

Dated 25 May 2005

P. M. JEFFERY

Governor-General

By His Excellency’s Command

PHILIP RUDDOCK


1              Name of Regulations

                These Regulations are the Family Law (Superannuation) Amendment Regulations 2005 (No. 2).

2              Commencement

                These Regulations commence on 15 June 2005.

3              Amendment of Family Law (Superannuation) Regulations 2001

                Schedule 1 amends the Family Law (Superannuation) Regulations 2001.


Schedule 1        Amendments

(regulation 3)

  

[1]           Regulation 3, after definition of adjusted base amount

insert

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.

[2]           Regulation 3, after definition of allocated pension

insert

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

[3]           Regulation 3, after definition of constitutionally protected fund

insert

deferred annuity means an annuity that is not presently payable.

[4]           Regulation 3, after definition of exempt public sector superannuation scheme

insert

fixed term annuity means an annuity that:

                (a)    is not a market linked annuity; and

               (b)    is paid for a fixed period.

[5]           Regulation 3, after definition of Judges’ Pensions Act Scheme

insert

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.

[6]           Subregulation 7 (1)

substitute

         (1)   This regulation applies to a superannuation interest of a member spouse in any of the following eligible superannuation plans:

                (a)    an eligible annuity;

               (b)    a superannuation fund other than a regulated superannuation fund.

[7]           Paragraph 9A (1) (e)

omit

the Retirement Benefits Fund.

insert

the Retirement Benefits Fund;

[8]           After paragraph 9A (1) (e)

insert

                (f)    a superannuation interest in an eligible annuity.

[9]           After subregulation 10 (5)

insert

      (5A)   An annuity provider that has entered into a contract with a person to provide an eligible annuity to that person is identified as the trustee of that eligible annuity.

[10]         After subparagraph 14A (a) (iii)

insert

                        (iv)    if the superannuation interest is in an eligible annuity — a condition of release mentioned in item 201, 202, 203 or 206 of Schedule 1 to the SIS Regulations; and

[11]         After subregulation 14G (11)

insert

       (12)   For the avoidance of doubt, nothing in this regulation requires the trustee of an eligible superannuation plan mentioned in paragraph (1) (b) to do any of the things mentioned in subregulation (3), (4), (5), (5A) or (6).

[12]         Paragraph 14H (2) (a)

substitute

                (a)    the interest is in a regulated superannuation fund, an approved deposit fund, an RSA or an eligible annuity; and

[13]         After subregulation 14N (7)

insert

         (8)   For the avoidance of doubt, nothing in this regulation requires the trustee of an eligible superannuation plan mentioned in subregulation (1) to do any of the things mentioned in subregulation (3), (4), (4A) or (5).

[14]         After regulation 14N

insert

14P         New deferred annuity established or amount transferred or rolled over or paid by trustee of deferred annuity in satisfaction of non-member spouse’s entitlement under agreement or order

         (1)   This regulation applies to a superannuation interest that is a percentage-only interest if the interest is in an eligible annuity that is a deferred annuity.

         (2)   The requirements of this Division are satisfied in relation to a non-member spouse’s entitlement under a particular superannuation agreement, flag lifting agreement or splitting order in respect of a superannuation interest of a member spouse if the requirements of subregulation (3), (4), (5) or (6) are satisfied.

         (3)   The requirements of this subregulation are satisfied if:

                (a)    the non-member spouse has satisfied a relevant condition of release in relation to the interest; and

               (b)    the trustee of the eligible annuity has, in respect of the non-member spouse’s entitlement under the agreement or order, paid to the non-member spouse an amount equal to the value of the non-member spouse’s entitlement in respect of the superannuation interest at the time of the payment; and

                (c)    the interest is in the growth phase at the time of the payment.

         (4)   The requirements of this subregulation are satisfied if:

                (a)    the trustee of the eligible annuity has, in respect of the non-member spouse’s entitlement under the agreement or order, transferred or rolled over to a superannuation fund or an RSA an amount, to be held for the benefit of the non-member spouse, with a value equal to the value of the non-member spouse’s entitlement in respect of the superannuation interest at the time the amount is transferred or rolled over; and

               (b)    the interest is in the growth phase at the amount is transferred or rolled over.

         (5)   The requirements of this subregulation are satisfied if:

                (a)    the trustee of the eligible annuity has, in respect of the non-member spouse’s entitlement under the agreement or order, established a new deferred annuity that:

                          (i)    provides for the payment of benefits to the non-member spouse, commencing no earlier than the time when, if the new deferred annuity were taken to be an approved deposit fund for the purposes of Part 6 of the SIS Regulations, that Part would permit or require the payment of benefits from the approved deposit fund; and

                         (ii)    has a value equal to the value of the non-member spouse’s entitlement in respect of the superannuation interest at the time the new deferred annuity is established; and

               (b)    the interest is in the growth phase at the time the new deferred annuity is established.

         (6)   The requirements of this subregulation are satisfied if:

                (a)    the trustee of the eligible annuity has, in respect of the non-member spouse’s entitlement under the agreement or order, established a new annuity for the benefit of the non-member spouse that:

                          (i)    is a non-commutable income stream (within the meaning of the SIS Regulations); and

                         (ii)    has a value equal to the value of the non-member spouse’s entitlement in respect of the superannuation interest at the time the new annuity is established; and

               (b)    the interest is in the growth phase at the time the new annuity is established.

         (7)   For subregulation (5):

                (a)    the trustee of the eligible annuity is taken to have established a new deferred annuity for the benefit of the non-member spouse if the trustee has entered into an agreement with the non-member spouse to provide a deferred annuity for the benefit of the non-member spouse; and

               (b)    the new deferred annuity is taken to have been established on the date on which the agreement between the trustee and the non-member spouse is entered into.

         (8)   For subregulation (6):

                (a)    the trustee of the eligible annuity is taken to have established a new annuity (being an annuity that is a non-commutable income stream) for the benefit of the non-member spouse if either of the following things have occurred:

                          (i)    the trustee has entered into an agreement with the non-member spouse to provide, for his or her benefit, an annuity that is a non-commutable income stream;

                         (ii)    the trustee has paid to another annuity provider an amount equal to the value of the non-member spouse’s entitlement in respect of the superannuation interest at the time the payment is made, for the purpose of that annuity provider providing, for the benefit of the non-member spouse, an annuity that is a non-commutable income stream; and

               (b)    the new annuity is taken to have been established:

                          (i)    if subparagraph (a) (i) applies — on the date on which the agreement between the trustee and the non-member spouse is entered into; or

                         (ii)    if subparagraph (a) (ii) applies — on the date on which the amount mentioned in subparagraph (a) (ii) is paid to the annuity provider by the trustee.

         (9)   For this regulation, the value in respect of a non-member spouse’s entitlement in respect of a superannuation interest at the time (the termination time) when the trustee carries out an action described in subregulation (3), (4), (5) or (6) is the account balance of the eligible annuity at the termination time, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse under regulation 59.

       (10)   For the avoidance of doubt, nothing in this regulation requires the trustee of an eligible annuity mentioned in subregulation (1) to do any of the things mentioned in subregulation (3), (4), (5) or (6).

14Q         New annuity established or amount transferred or rolled over or paid by trustee of eligible annuity (other than under regulation 14P) in satisfaction of non-member spouse’s entitlement under agreement or order

         (1)   This regulation applies to a superannuation interest that is a percentage-only interest if the interest is in an eligible annuity that is one of the following:

                (a)    an allocated annuity;

               (b)    a market linked annuity;

                (c)    a fixed term annuity;

               (d)    a lifetime annuity, including a lifetime annuity that is payable for the lives of more than one person.

         (2)   The requirements of this Division are satisfied in relation to a non-member spouse’s entitlement under a particular superannuation agreement or splitting order in respect of a superannuation interest of a member spouse if the requirements of subregulation (3), (4) or (5) are satisfied.

         (3)   The requirements of this subregulation are satisfied if:

                (a)    the trustee of the eligible annuity has, in respect of the non-member spouse’s entitlement under the agreement or order, paid to the non-member spouse an amount equal to the value of the non-member spouse’s entitlement in respect of the superannuation interest at the time of the payment; and

               (b)    the interest:

                          (i)    was in the payment phase at the operative time in relation to the agreement or order; and

                         (ii)    is in the payment phase at the time of the payment.

         (4)   The requirements of this subregulation are satisfied if:

                (a)    the trustee of the eligible annuity has, in respect of the non-member spouse’s entitlement under the agreement or order, transferred or rolled over to a superannuation fund or an RSA an amount, to be held for the benefit of the non-member spouse, with a value equal to the value of the non-member spouse’s entitlement in respect of the superannuation interest at the time the amount is transferred or rolled over; and

               (b)    the interest is in the payment phase at the time the amount is transferred or rolled over.

         (5)   The requirements of this subregulation are satisfied if:

                (a)    the trustee of the eligible annuity has, in respect of the non-member spouse’s entitlement under the agreement or order, established any of the following new annuities for the benefit of the non-member spouse:

                          (i)    an allocated annuity;

                         (ii)    a market linked annuity;

                         (iii)    a fixed term annuity;

                        (iv)    a lifetime annuity; and

               (b)    the new annuity has a value equal to the value of the non-member spouse’s entitlement in respect of the superannuation interest at the time the new annuity is established; and

                (c)    the interest is in the payment phase at the time the new annuity is established.

         (6)   For subregulation (5):

                (a)    the trustee of the eligible annuity is taken to have established a new annuity for the benefit of the non-member spouse if either of the following things have occurred:

                          (i)    the trustee has entered into an agreement with the non-member spouse to provide, for his or her benefit, an annuity that is a type of annuity mentioned in subparagraph (5) (a) (i), (ii), (iii) or (iv);

                         (ii)    the trustee has paid to another annuity provider an amount equal to the value of the non-member spouse’s entitlement in respect of the superannuation interest at the time the payment is made, for the purpose of that annuity provider providing, for the benefit of the non-member spouse, an annuity that is a type of annuity mentioned in subparagraph (5) (a) (i), (ii), (iii) or (iv); and

               (b)    the new annuity is taken to have been established:

                          (i)    if subparagraph (a) (i) applies — on the date on which the agreement between the trustee and the non-member spouse is entered into; or

                         (ii)    if subparagraph (a) (ii) applies — on the date on which the amount mentioned in subparagraph (a) (ii) is paid to the annuity provider by the trustee.

         (7)   For this regulation, the value in respect of non-member spouse’s entitlement in respect of a superannuation interest at the time (the termination time) when the trustee carries out an action described in any of subregulations (3) to (5) is:

                (a)    if the superannuation interest is in an eligible annuity that is an allocated annuity — the account balance of the allocated annuity at the termination time, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse under regulation 59; or

               (b)    if the superannuation interest is in an eligible annuity that is a market linked annuity — the account balance of the market linked annuity at the termination time, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse under regulation 59; or

                (c)    if the superannuation interest is in an eligible annuity that is a lifetime annuity — the value of the interest at the termination time calculated in accordance with Schedule 4A, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse under regulation 59; or

               (d)    if the superannuation interest is in an eligible annuity that is a fixed term annuity — the value of the interest at the termination time calculated in accordance with Schedule 5A, multiplied by the specified percentage, less the amount of any fees payable by the non-member spouse under regulation 59.

         (8)   For the avoidance of doubt, nothing in this regulation requires the trustee of an eligible annuity mentioned in subregulation (1) to do any of the things mentioned in subregulation (3), (4) or (5).

[15]         Regulation 19, heading

substitute

19            Entitlement of non-member spouse — splittable payment payable in respect of superannuation interest (other than an interest in an eligible annuity)

[16]         Regulation 19

omit

                The amount that the non-member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of the superannuation interest is:

insert

                The amount that the non-member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of a superannuation interest that the member spouse has in an eligible superannuation plan (other than an eligible annuity) is:

[17]         After regulation 19

insert

19A         Entitlement of non-member spouse — splittable payment payable in respect of superannuation interest in an eligible annuity

                The amount that the non-member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of a superannuation interest that the member spouse has in an eligible annuity is the amount of the splittable payment multiplied by the percentage specified in the relevant superannuation agreement or flag-splitting agreement.

[18]         Regulation 26, heading

substitute

26            Entitlement of non-member spouse — splittable payment payable in respect of superannuation interest (other than an interest in an eligible annuity)

[19]         Regulation 26

omit

                The amount that the non-member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of the superannuation interest is:

insert

                The amount that the non-member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of a superannuation interest that the member spouse has in an eligible superannuation plan (other than an eligible annuity) is:

[20]         After regulation 26

insert

26A         Entitlement of non-member spouse — splittable payment payable in respect of superannuation interest in an eligible annuity

                The amount that the non-member spouse is entitled to be paid in respect of a splittable payment that becomes payable in respect of a superannuation interest that the member spouse has as a member of an eligible annuity is the amount of the splittable payment multiplied by the percentage specified in the splitting order.

[21]         After paragraph 66 (2) (d)

insert

              (da)    if the interest is in an eligible annuity and was in the payment phase at the appropriate date, and the member is receiving ongoing payments of benefits (ongoing benefits) under the annuity — the payment phase information in relation to the interest mentioned in subregulation (3A);

[22]         Paragraph 66 (2) (e)

omit

if the interest

insert

if the interest (other than an interest in a deferred annuity)

[23]         After paragraph 66 (2) (e)

insert

            (eaa)    if the interest is in a deferred annuity and was in the growth phase at the appropriate date — the growth phase information in relation to the interest mentioned in subregulation (4A);

[24]         After subregulation 66 (3)

insert

      (3A)   For paragraph (2) (da), the payment phase information in relation to the superannuation interest is:

                (a)    if the ongoing benefits are paid in respect of an eligible annuity that is an allocated annuity — the withdrawal benefit in relation to the member at the appropriate date; and

               (b)    if the ongoing benefits are paid in respect of an eligible annuity that is a market linked annuity — the market linked annuity account balance at the appropriate date; and

                (c)    in any other case:

                          (i)    the amount of ongoing benefits payable to the member at the appropriate date; and

                         (ii)    a statement indicating whether the eligible annuity is a lifetime annuity or a fixed-term annuity; and

                         (iii)    if the eligible annuity is a fixed-term annuity:

                                   (A)     the date when the payment of ongoing benefits commenced; and

                                   (B)     the length of the term; and

                        (iv)    a statement indicating whether the eligible annuity is indexed and, if so, the method of indexation.

Note   The trustee is not required to provide the information mentioned in paragraph (a) or subparagraph (c) (i) unless a record of it is in the trustee’s possession, power or control — see paragraph (6) (b).

[25]         After subregulation 66 (4)

insert

      (4A)   For paragraph (2) (eaa), the growth phase information in relation to the superannuation interest is as follows:

                (a)    the account balance of the deferred annuity at the appropriate date;

               (b)    the information mentioned in subparagraphs (4) (d) (i) and (ii) and paragraph (4) (e).

[26]         Subparagraph 66 (5) (d) (iii)

omit

the member’s accrued benefit multiple

insert

if the superannuation interest is in an eligible superannuation plan other than an eligible annuity — the member’s accrued benefit multiple

[27]         Paragraph 66 (6) (b)

omit

paragraph (3) (a), subparagraph (3) (b) (i) or paragraph (4) (c)

insert

paragraph 3 (a), subparagraph (3) (b) (i), paragraph (3A) (a), subparagraph (3A) (c) (i), paragraph (4) (c) or paragraph (4A) (a)

[28]         Schedule 1, Form 1

substitute

Form 1        Notice to trustee that non-member spouse’s entitlement under agreement or order satisfied

(subregulations 14H (2) and (3))

NOTICE TO TRUSTEE THAT NON-MEMBER SPOUSE’S ENTITLEMENT IS SATISFIED IN RESPECT OF PARTICULAR PAYMENT SPLIT

TO the trustee of [name of eligible superannuation plan]:

IN RELATION TO the payment split, of which you were notified on [date when superannuation agreement, flag lifting agreement or splitting order was served on the trustee], in respect of the superannuation interest of [name of member spouse], date of birth [date of birth of member spouse]

Part A — Superannuation interest in a regulated superannuation fund, approved deposit fund, RSA or eligible annuity

[Complete Part A if the superannuation interest is in a regulated superannuation fund, approved deposit fund, RSA or eligible annuity]

I, [name], the non-member spouse in relation to the above superannuation interest, of [postal address], born on [date of birth], give notice that:

*1.     I have received from [name of member spouse] the amount of [amount] in satisfaction of my entitlement in respect of the payment split.

          OR

*1.     [Name of member spouse] has paid the amount of [amount] to a regulated superannuation fund or an RSA, to be held for my benefit, in satisfaction of my entitlement in respect of the payment split.

2.       I received independent legal advice from a legal practitioner explaining that the payment to me is in substitution for:

(a)     any entitlement I have to receive an amount of money from a splittable payment that becomes payable in respect of the superannuation interest; or

(b)     any right I have to make a request under the payment split provisions of the Superannuation Industry (Supervision) Regulations 1994 to have a new interest created in the eligible superannuation plan in which the member spouse has the superannuation interest, or to request the trustee of that plan to transfer an amount to another eligible superannuation plan to be held for my benefit.

Part B — Superannuation interest in an exempt public sector superannuation scheme or the scheme constituted by the Superannuation Act 1922

[Complete Part B if the superannuation interest is in an exempt public sector superannuation scheme or the scheme constituted by the Superannuation Act 1922]

I, [name], the non-member spouse in relation to the above superannuation interest, of [postal address], born on [date of birth], give notice that:

1.       I have received from [name of member spouse] the amount of [amount] in satisfaction of my entitlement in respect of the payment split.

2.       I received independent legal advice from a legal practitioner explaining that the payment to me is in substitution for any entitlement I have to receive an amount of money from a splittable payment that becomes payable in respect of the superannuation interest.

DATED:

[signature of non-member spouse]

*   Omit if not applicable

[29]         Schedule 2, Part 5, subclause 31 (3), definition of Dy+1

substitute

Dy+1 is the discount valuation factor specified in clause 32 that would apply in respect of the lump sum at the relevant date if the minimum deferral period (in complete years) applying to the lump sum at that date were one year more than the minimum deferral period applying to the lump sum at that date.

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

substitute

Dy+1 is the discount valuation factor specified in clause 35 that would apply in respect of the lump sum at the relevant date if the minimum deferral period (in complete years) applying to the lump sum at that date were one year more than the minimum deferral period applying to the lump sum at that date.

[31]         After Schedule 4

insert

Schedule 4A      Method for determining value of superannuation interest in lifetime annuity

(paragraph 14Q (7) (c))

1              Application of Schedule 4A

                This Schedule sets out the method for determining the value, at the termination time, of a superannuation interest in a lifetime annuity if the interest was in the payment phase at the termination time.

2              Method

         (1)   The method is:

where:

B is the amount of the annual benefit payable in respect of the superannuation interest at the termination time.

Vy is the pension valuation factor under Schedule 4 that applies to the particular lifetime annuity and the member spouse’s age in completed years at the termination time.

m is the number of completed months of the member spouse’s age that are not included in the completed years at the termination time.

Vy+1 is the pension valuation factor under Schedule 4 that applies to the particular lifetime annuity and the member spouse’s age at the completion of the next year after the year mentioned in the definition of the factor Vy.

         (2)   For the purpose of applying the factors Vy and Vy+1 in the formula in subclause (1), a reference in Schedule 4 to ‘pension’ is taken to be read as a reference to ‘annuity’.

[32]         After Schedule 5

insert

Schedule 5A      Method for determining value of superannuation interest in fixed term annuity

(paragraph 14Q (7) (d))

1              Application of Schedule 5A

                This Schedule sets out the method for determining the value, at the termination time, of a superannuation interest in a fixed term annuity if the interest was in the payment phase at the termination time.

2              Method

         (1)   The method is:

where:

B is the value of the annual benefit payable in respect of the superannuation interest at the termination time.

Vy+m is the valuation factor calculated in accordance with subclause (2).

         (2)   For subclause (1), the valuation factor (Vy+m) at the termination time is:

where:

Vy is the pension valuation factor under Schedule 5 that applies to the particular fixed term annuity payable to the member spouse and the remaining term of the annuity in complete years at the termination time.

m is the number of complete months of the remaining term of the fixed term annuity that are not included in the remaining complete years at the termination time.

Vy+1 is the pension valuation factor under Schedule 5 that would apply to the particular fixed term annuity payable to the member spouse if the remaining term of the annuity at the termination time were one year more than the actual remaining term of the annuity at that time.

         (3)   For the purpose of applying the factors Vy and Vy+1 in the formula in subclause (2), a reference in Schedule 5 to ‘pension’ is taken to be read as a reference to ‘annuity’.

Note

1.       All legislative instruments and compilations are registered on the Federal Register of Legislative Instruments kept under the Legislative Instruments Act 2003. See www.frli.gov.au.