Explanatory Statement
Issued by authority of the Attorney-GeneralFamily and Other Laws (Superannuation) (Repeal and Consequential Amendments) Regulations 2025
Under subsection 125(1) of the Family Law Act 1975, subsection 1364(1) of the Corporations Act 2001, subsection 909-1(1) of the Income Tax Assessment Act 1997, section 21 of the Judges' Pensions Act 1968, subsection 65(1) of the Papua New Guinea (Staffing Assistance) Act 1973, subsection 200(1) of the Retirement Savings Accounts Act 1997, subsection 42(1) of the Superannuation Contributions Tax (Assessment and Collection) Act 1997, section 353 of the Superannuation Industry (Supervision) Act 1993
PURPOSE AND OPERATION OF THE INSTRUMENT
Parts VIIIB and VIIIC of the Family Law Act 1975 (Family Law Act) provide for the division of superannuation between married and de facto couples upon the breakdown of a relationship. Subsection 125(1) of the Family Law Act provides, in part, that the Governor-General may make regulations, not inconsistent with the Family Law Act, prescribing all matters required or permitted by the Family Law Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Family Law Act.
The Family Law (Superannuation) Regulations 2001 (2001 Regulations) give effect to the distribution of superannuation interests under Parts VIIIB and VIIIC of the Family Law Act by prescribing the methods for valuing superannuation interests, the way in which payment splits are to be put into effect, and the information that trustees must provide to parties.
The 2001 Regulations are scheduled to sunset on 1 April 2025. Sunsetting is the automatic repeal of instruments after a fixed period of time, subject to some exceptions under the Legislation Act 2003.
Paragraph 4(f) of the Legislation (Family Law Instruments) Sunset-altering Declaration 2018 deferred the sunsetting date for the 2001 Regulations from 1 October 2019 to 1 April 2023. Paragraph 4(c) of the Legislation (Deferral of Sunsetting-Family Law Instruments) Certificate 2022 then deferred this date to 1 April 2025.
The deferral of sunsetting enabled the Attorney-General's Department to conduct a fit-for purpose and thematic review, which ensures that legislative instruments are kept up to date and only remain in force for so long as they are needed. The review found the 2001 Regulations were operating as intended and continue to be necessary, however, recommended some technical updates. The Family Law (Superannuation) Regulations 2025 (2025 Regulations) will incorporate the findings of the review.
The 2001 Regulations will be replaced by the 2025 Regulations. Information on a comparison table of provisions is below.
Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Consequential amendments are required to give effect to the 2025 Regulations when they commence. The Family and Other Laws (Superannuation) (Repeal and Consequential Amendments) Regulations 2025 (the Consequential Regulations) will repeal the 2001 Regulations and make consequential amendments to the Corporations Regulations 2001, Income Tax Assessment (1997 Act) Regulations 2021, Judges' Pensions Regulations 1998, Papua New Guinea (Staffing Assistance) (Superannuation) Regulations 1973, Retirement Savings Accounts Regulations 1997, Superannuation Contributions Tax (Assessment and Collection) Regulations 2019 and Superannuation Industry (Supervision) Regulations 1994.
The Consequential Regulations omit references to the 2001 Regulations and substitute references to the 2025 Regulations in the legislative instruments identified above. The consequential amendments do not give effect to any policy change. The purpose of the Consequential Regulations is to facilitate the smooth repeal and commencement of the remade 2025 Regulations on 1 April 2025.
CONSULTATION
Consultation has been undertaken with the Treasury and the Department of Finance on the Consequential Regulations. Those agencies are responsible for the legislation that would be amended by the Consequential Regulations, and they agree that the amendments are necessary to ensure the relevant legislation remains accurate. Public consultation was not considered necessary.
However, as the 2025 Regulations will replace the 2001 Regulations, they were subject to consultation with relevant stakeholders including through the release of exposure draft regulations for public consultation from 14 March 2024 to 26 April 2024. Feedback was received from family law practitioners, superannuation trustees, superannuation actuaries (including the Australian Government Actuary), financial professionals and accountants, and superannuation industry peak bodies.
Feedback was generally supportive, and stakeholders provided helpful technical suggestions which have been addressed in the 2025 Regulations.
IMPACT ANALYSIS
The Office of Impact Analysis has confirmed that no impact analysis is required (OIA24-08454).
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights issues. A Statement of Compatibility with Human Rights is set out in Attachment A .
The instrument is a legislative instrument for the purposes of the Legislation Act 2003. Details of the instrument are set out in Attachment B .
COMPARISON TABLE OF PROVISIONS
A table providing a comparison of the provision numbers between the 2001 Regulations and the 2025 Regulations is at Attachment C .
ATTACHMENT A
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Family and Other Laws (Superannuation) (Repeal and Consequential Amendments) Regulations 2025
This Disallowable Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Disallowable Legislative Instrument
The Family and Other Laws (Superannuation) (Repeal and Consequential Amendments) Regulations 2025 (the Consequential Regulations) repeal the Family Law (Superannuation) Regulations 2001 (2001 Regulations), which are due to sunset on 1 April 2025.
The purpose of the Consequential Regulations is to facilitate the repeal of the 2001 Regulations to coincide with the commencement of the Family Law (Superannuation) Regulations 2025 (2025 Regulations). Technical amendments are made to the Corporations Regulations 2001, Income Tax Assessment (1997 Act) Regulations 2021, Judges' Pensions Regulations 1998, Papua New Guinea (Staffing Assistance) (Superannuation) Regulations 1973, Retirement Savings Accounts Regulations 1997, Superannuation Contributions Tax (Assessment and Collection) Regulations 2019 and Superannuation Industry (Supervision) Regulations 1994. The amendments are necessary to ensure cross-references to the 2001 Regulations are updated to reflect correct references to the 2025 Regulations.
Human rights implications
This Disallowable Legislative Instrument is technical in nature only and does not engage any of the applicable rights or freedoms.
Conclusion
This Disallowable Legislative Instrument is compatible with human rights as it does not raise any human rights implications.
ATTACHMENT B
Details of the Family and Other Laws (Superannuation) (Repeal and Consequential Amendments) Regulations 2025
Section 1 – Name
This section provides that the title of the instrument is the Family and Other Laws (Superannuation) (Repeal and Consequential Amendments) Regulations 2025 (Consequential Regulations).
Section 2 – Commencement
This section provides that the Consequential Regulations commence on 1 April 2025, which is the day that the Family Law (Superannuation) Regulations 2025 (2025 Regulations) commence.
Section 3 – Authority
This section provides that the instrument is made under the Corporations Act 2001 (Corporations Regulations), Family Law Act 1975, Income Tax Assessment Act 1997, Judges' Pensions Act 1968, Papua New Guinea (Staffing Assistance) Act 1973, Retirement Savings Accounts Act 1997, Superannuation Contributions Tax (Assessment and Collection) Act 1997 and the Superannuation Industry (Supervision) Act 1993.
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.
Schedule 1—Amendments
Part 1 – Main amendments
Corporations Regulations 2001
Item [1] – Regulation 7.9.84 (definition of adjusted base amount )
Item 1 repeals the definition of 'adjusted base amount' and substitutes a new definition in regulation 7.9.84 of the Corporations Regulations. The new definition of 'adjusted base amount' references the defined term 'adjusted base amount applicable to the non-member spouse' in the 2025 Regulations. This amendment provides for a clear and accurate defined term following the repeal of the Family Law (Superannuation) Regulations 2001 (2001 Regulations) and the commencement of the 2025 Regulations.
Item [2] – Regulation 7.9.84 (definition of base amount )
Item 2 repeals the definition of 'base amount' and substitutes a new definition in regulation 7.9.84 of the Corporations Regulations. The new definition of 'base amount' references the defined term 'base amount' that is used in the 2025 Regulations. This amendment provides for a clear and accurate defined term following the repeal of the 2021 Regulations and the commencement of the 2025 Regulations.
Item [3] – Paragraph 7.9.92(3)(c)
Item 3 omits "regulation 48 of the Family Law (Superannuation) Regulations 2001" and substitutes "section 76 of the Family Law (Superannuation) Regulations 2025" in paragraph 7.9.92(3)(c) of the Corporations Regulations. This amendment ensures the provision refers to the relevant section of the 2025 Regulations.
Income Tax Assessment (1997 Act) Regulations 2021
Item [4] – Section 307-5.01
Item 4 omits "Family Law (Superannuation) Regulations 2001" and substitutes "Family Law (Superannuation) Regulations 2025" in section 307-5.01 of the Income Tax Assessment (1997 Act) Regulations 2021. This amendment ensures the correct legislative instrument title is referenced following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Judges' Pensions Regulations 1998
Item [5] – Regulation 5 (note)
Item 5 omits "regulations 19 and 26 of the Family Law (Superannuation) Regulations 2001" and substitutes "sections 41 and 48 of the Family Law (Superannuation) Regulations 2025" into the note under regulation 5 of the Judges' Pensions Regulations 1998. This updates references to provisions that contain certain formulas used to calculate a non-member spouse's entitlement, following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Papua New Guinea (Staffing Assistance) (Superannuation) Regulations 1973
Item [6] – Regulation 90 (definition of FLS Regulations )
Item 6 omits "Family Law (Superannuation) Regulations 2001" and substitutes "Family Law (Superannuation) Regulations 2025" in regulation 90 of the Papua New Guinea (Staffing Assistance) (Superannuation) Regulations 1973. This amendment ensures the correct legislative instrument title is referenced following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [7] – Subregulation 91(3) (step 2)
Item 7 omits "subclause 2(2) of Schedule 4" and substitutes "clause 3 of Schedule 5" in subregulation 91(3) (step 2) of the Papua New Guinea (Staffing Assistance) (Superannuation) Regulations 1973. This updates the reference to a certain method used to determine the gross value of a superannuation interest payable as a life pension, except for reasons of invalidity. This method will be relocated on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures there is an accurate reference to the relocated method in the 2025 Regulations.
Item [8] – Subregulation 93(1) (steps 2A and 2B)
Item 8 omits "subclause 2(2) of Schedule 4" and substitutes "clause 3 of Schedule 5" in subregulation 93(1) (steps 2A and 2B) of the Papua New Guinea (Staffing Assistance) (Superannuation) Regulations 1973. This updates a reference to a certain method used to determine the gross value of a superannuation interest payable as a life pension, except for reasons of invalidity. This method will be relocated on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures there is an accurate reference to the relevant method in the 2025 Regulations.
Retirement Savings Accounts Regulations 1997
Item [9] – Subregulation 1.03(1) (definition of adjusted base amount )
Item 9 repeals the definition of 'adjusted base amount' and substitutes a new definition at subregulation 1.03(1) of the Retirement Savings Accounts Regulations 1997. The new definition of 'adjusted base amount' references the defined term 'adjusted base amount applicable to the non-member spouse' that is used in the 2025 Regulations. This amendment provides for a clear and accurate definition in subregulation 1.03(1) on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [10] – Subregulation 1.03(1) (paragraph (b) of the definition of transferable benefits )
Item 10 omits "regulation 45 of the Family Law (Superannuation) Regulations 2001" and substitutes "section 72 of the Family Law (Superannuation) Regulations 2025" in paragraph (b) of the defined term of "transferable benefits" in subregulation 1.03(1) of the Retirement Savings Accounts Regulations 1997. The provision referenced contains the defined term 'base amount allocated to the non-member spouse'. This amendment ensures the reference in paragraph (b) remains accurate following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [11] – Subregulation 1.03(1) (subparagraph (c)(i) of the definition of transferable benefits)
Item 11 omits "regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001" and substitutes "section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025" in subparagraph (c)(i) of the definition of 'transferable benefits' in subregulation 1.03(1) of the Retirement Savings Accounts Regulations 1997. The provisions referenced deal with determining the gross value of superannuation interests in the growth phase. Those provisions will be relocated to new sections on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures references in subregulation 1.03(1)(c)(i) remain accurate.
Item [12] – Subregulation 1.03(1) (subparagraph (c)(ii) of the definition of transferable benefits)
Item 12 omits "Part 5 of the Family Law (Superannuation) Regulations 2001" and substitutes "Part 6 of the Family Law (Superannuation) Regulations 2025" in subparagraph (c)(ii) of the definition of 'transferable benefits' in subregulation 1.03(1) of the Retirement Savings Accounts Regulations 1997. The Part referenced deals with determining the value of certain superannuation interests for the member spouse. The Part will be relocated to a new Part, on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures the reference in subregulation 1.03(1)(c)(iii) remains accurate.
Item [13] – Paragraph 4A.05(3)(b)
Item 13 omits "regulation 45 of the Family Law (Superannuation) Regulations 2001" and substitutes "section 72 of the Family Law (Superannuation) Regulations 2025" in paragraph 4A.05(3)(b) of the Retirement Savings Accounts Regulations 1997. The provision referenced contains the defined term 'base amount allocated to the non-member spouse'. This amendment ensures the reference in paragraph 4A.05(3)(b) remains accurate following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [14] – Subparagraph 4A.05(3)(c)(i)
Item 14 omits "regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001" and substitutes "section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025" in subparagraph 4A.05(3)(c)(i) of the Retirement Savings Accounts Regulations 1997. The provisions referenced deal with determining the gross value of superannuation interests in the growth phase. The provisions will be relocated to new sections, on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures the references in subparagraph 4A.05(3)(c)(i) remain accurate.
Item [15] - Subparagraph 4A.05(3)(c)(ii)
Item 15 omits "Part 5 of the Family Law (Superannuation) Regulations 2001" and substitutes "Part 6 of the Family Law (Superannuation) Regulations 2025" in subparagraph 4A.05(3)(c)(ii) of the Retirement Savings Accounts Regulations 1997. The Part referenced deals with determining the value of certain superannuation interests for the member spouse. The Part will be relocated to a new Part on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures subparagraph 4A.05(3)(c)(iii) contains an accurate reference to the new Part.
Item [16] - Paragraph 4A.22(2)(b)
Item 16 omits "regulation 45 of the Family Law (Superannuation) Regulations 2001" and substitutes "section 72 of the Family Law (Superannuation) Regulations 2025" in paragraph 4A.22(2)(b) of the Retirement Savings Accounts Regulations 1997. The provision referenced contains the defined term 'base amount allocated to the non-member spouse'. This amendment ensures the reference in paragraph 4A.22(2)(b) remains accurate following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [17] - Paragraph 4A.22(2)(c)(i)
Item 17 omits "regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001" and substitutes "section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025" in paragraph 4A.22(2)(c)(i) of the Retirement Savings Accounts Regulations 1997. The provisions referenced deal with determining the gross value of superannuation interests in the growth phase. They will be relocated to new sections on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures the references in paragraph 4A.22(c)(i) remain accurate.
Item [18] - Paragraph 4A.22(2)(c)(ii)
Item 18 omits "Part 5 of the Family Law (Superannuation) Regulations 2001" and substitute "Part 6 of the Family Law (Superannuation) Regulations 2025" in paragraph 4A.22(2)(c)(ii) of the Retirement Savings Accounts Regulations 1997. The Part that is referenced deals with determining the value of certain superannuation interests for the member spouse. The Part will be relocated to a new Part following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures subparagraph 4A.22(2)(c)(ii) contains an accurate reference to the new Part.
Item [19] – Paragraph 4A.24(2)(b)
Item 19 omits "regulation 45 of the Family Law (Superannuation) Regulations 2001" and substitutes "section 72 of the Family Law (Superannuation) Regulations 2025" in paragraph 4A.24(2)(b) of the Retirement Savings Accounts Regulations 1997. The provision referenced contains the defined term 'base amount allocated to the non-member spouse'. This amendment ensures the reference in paragraph 4A.24(2)(b) remains accurate following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [20] – Subparagraph 4A.24(2)(c)(i)
Item 20 omits "regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001" and substitutes "section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025" in subparagraph 4A.24(2)(c)(i) of the Retirement Savings Accounts Regulations 1997. The provisions referenced deal with determining the gross value of superannuation interests in the growth phase. They will be relocated to new sections on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures the references in subparagraph 4A.24(2)(c)(i) remain accurate.
Item [21] – Subparagraph 4A.24(2)(c)(ii)
Item 21 omits "Part 5 of the Family Law (Superannuation) Regulations 2001" and substitutes "Part 6 of the Family Law (Superannuation) Regulations 2025" in subparagraph 4A.24(2)(c)(ii) of the Retirement Savings Accounts Regulations 1997. The Part that is referenced deals with determining the value of certain superannuation interests for the member spouse. The Part will be relocated to a new Part, on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures subparagraph 4A.24(2)(c)(ii) contains an accurate reference to the new Part.
Superannuation Contributions Tax (Assessment and Collection) Regulations 2019
Item [22] – Subsection 6(2)
Item 22 omits "Division 2.2 of the Family Law (Superannuation) Regulations 2001" and substitutes "Part 3 of the Family Law (Superannuation) Regulations 2025" in subsection 6(2) of the Superannuation Contributions Tax (Assessment and Collection) Regulations 2019. The Division referenced deals with superannuation interests that cannot be split using a superannuation agreement, flag lifting agreement or family law court order. The relevant provisions will be relocated from a Division into a Part, on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures subsection 6(2) contains an accurate reference to the new Part.
Item [23] – Subsection 6(2) (note)
Item 23 repeals the legislative note under subsection 6(2) of the Superannuation Contributions Tax (Assessment and Collection) Regulations 2019 and substitutes it with a new note. The text of the new note replaces a reference to "Division 2.2 of the Family Law (Superannuation) Regulations 2001" with a reference to "Part 3 of the Family Law (Superannuation) Regulations 2025." The Division referenced deals with superannuation interests that cannot be split using a superannuation agreement, flag lifting agreement or family law court order. The relevant provisions will be relocated from a Division into a Part, on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures the legislative note at subsection 6(2) contains an accurate reference to the new Part.
Superannuation Industry (Supervision) Regulations 1994
Item [24] – Subregulation 1.03(1) (definition of adjusted base amount )
Item 24 repeals the definition of 'adjusted base amount' and substitutes a new definition in subregulation 1.03(1) of the Superannuation Industry (Supervision) Regulations 1994. The new definition of 'adjusted base amount' references the defined term 'adjusted base amount applicable to the non-member spouse' used in the 2025 Regulations. This provides a clear and accurate definition following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [25] – Subregulation 1.03(1) (paragraph (b) of the definition of transferable benefits )
Item 25 omits "regulation 45 of the Family Law (Superannuation) Regulations 2001" and substitutes "section 72 of the Family Law (Superannuation) Regulations 2025" in paragraph (b) of the definition of 'transferable benefits' at subregulation 1.03(1) of the Superannuation Industry (Supervision) Regulations 1994. The provision referenced contains the defined term 'base amount allocated to the non-member spouse'. This amendment ensures the reference in paragraph (b) remains accurate following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [26] – Subregulation 1.03(1) (subparagraph (c)(i) of the definition of transferable benefits )
Item 26 omits "regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001" and substitutes "section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025" in subparagraph (c)(i) of the definition of 'transferable benefits' at subregulation 1.03(1) of the Superannuation Industry (Supervision) Regulations 1994. The provisions that are referenced deal with determining the gross value of superannuation interests in the growth phase. They will be relocated to new sections on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures the references in subparagraph (c)(i) in the definition remain accurate.
Item [27] – Subregulation 1.03(1) (subparagraph (c)(iii) of the definition of transferable benefits )
Item 27 omits "Part 5 of the Family Law (Superannuation) Regulations 2001" and substitutes "Part 6 of the Family Law (Superannuation) Regulations 2025" in subparagraph (c)(iii) of the definition of 'transferable benefits' at subregulation 1.03(1) of the Superannuation Industry (Supervision) Regulations 1994. The Part that is referenced deals with determining the value of certain superannuation interests for the member spouse. The Part will be relocated on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures subregulation 1.03(1)(c)(iii) contains an accurate reference to the new Part.
Item [28] – Paragraph 5.02(2)(c)
Item 28 omits "regulation 59 of the Family Law (Superannuation) Regulations 2001" and substitutes "section 98 of the Family Law (Superannuation) Regulations 2025" in paragraph 5.02(2)(c) of the Superannuation Industry (Supervision) Regulations 1994. The provision that is referenced allows a trustee to charge reasonable fees for doing certain actions that relate to family law superannuation matters. The provision will be relocated to a new section on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures paragraph 5.03(2)(c) contains an accurate reference to the new section number.
Item [29] – Subparagraphs 6.17(2B)(a)(i) and (ii)
Item 29 omits "Division 2.2 of the Family Law (Superannuation) Regulations 2001" and substitutes "Part 3 of the Family Law (Superannuation) Regulations 2025" in subparagraph 6.17(2B)(a)(i) and (ii) of the Superannuation Industry (Supervision) Regulations 1994. The Division that is referenced deals with superannuation interests that cannot be split using a superannuation agreement, flag lifting agreement or family law court order. The relevant provisions will be relocated from a Division into a Part, on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures the reference in subparagraphs 6.17(2B)(a)(i) and (ii) remains accurate.
Item [30] – Paragraph 7A.03B(3)(b)
Item 30 omits "regulation 45 of the Family Law (Superannuation) Regulations 2001" and substitutes "section 72 of the Family Law (Superannuation) Regulations 2025" in paragraph 7A.03B(3)(b) of the Superannuation Industry (Supervision) Regulations 1994. The provision referenced contains the defined term 'base amount allocated to the non-member spouse'. This amendment ensures the reference in paragraph 7A.03B(3)(b) remains accurate following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [31] – Subparagraph 7A.03B(3)(c)(ii)
Item 31 omits "regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001" and substitutes "section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025" in subparagraph 7A.03B(3)(c)(ii) of the Superannuation Industry (Supervision) Regulations 1994. The provisions referenced deal with determining the gross value of superannuation interests in the growth phase. The provisions will be relocated to new sections on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures the references in subparagraph 7A.03B(3)(c)(ii) remain accurate.
Item [32] – Subparagraph 7A.03B(3)(c)(iii)
Item 32 omits "Part 5 of the Family Law (Superannuation) Regulations 2001" and substitutes "Part 6 of the Family Law (Superannuation) Regulations 2025" in subparagraph 7A.03B(3)(c)(iii) of the Superannuation Industry (Supervision) Regulations 1994. The Part that is referenced deals with determining the value of certain superannuation interests for the member spouse. The Part will be relocated on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures subparagraph 7A.03B(c)(iii) contains an accurate reference to the new Part.
Item [33] – Subregulation 7A.04(4) (definition of partially vested accumulation interest )
Item 33 repeals the definition of 'partially vested accumulation interest' and substitutes a new definition of "partially vested accumulation interest has the meaning given by section 10 of the Family Law (Superannuation) Regulations 2025" in subregulation 7A.04(4) of the Superannuation Industry (Supervision) Regulations 1994. The amendment ensures the definition contains an accurate reference to the new section number following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [34] – Paragraph 7A.11(2)(b)
Item 34 omits "regulation 45 of the Family Law (Superannuation) Regulations 2001" and substitutes "section 72 of the Family Law (Superannuation) Regulations 2025" in paragraph 7A.11(2)(b) of the Superannuation Industry (Supervision) Regulations 1994. The provision referenced contains the defined term 'base amount allocated to the non-member spouse'. This amendment ensures the reference in paragraph 7A.11(2)(b) remains accurate following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [35] – Subparagraph 7A.11(2)(c)(i)
Item 35 omits "regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001" and substitutes "section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025" in subparagraph 7A.11(2)(c)(i) of the Superannuation Industry (Supervision) Regulations 1994. The provisions referenced deal with determining the gross value of superannuation interests in the growth phase. The provisions will be relocated to new sections on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures the references in subparagraph 7A.11(2)(c)(i) remain accurate.
Item [36] – Subparagraph 7A.11(2)(c)(iii)
Item 36 omits "Part 5 of the Family Law (Superannuation) Regulations 2001" and substitutes "Part 6 of the Family Law (Superannuation) Regulations 2025" in subparagraph 7A.11(2)(c)(iii) of the Superannuation Industry (Supervision) Regulations 1994. The Part that is referenced deals with determining the value of certain superannuation interests for the member spouse. The Part will be relocated on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures subparagraph 7A.11(2)(c)(iii) contains an accurate reference to the new Part.
Item [37] – Paragraph 7A.13(2)(b)
Item 37 omits "regulation 45 of the Family Law (Superannuation) Regulations 2001" and substitutes "section 72 of the Family Law (Superannuation) Regulations 2025" in paragraph 7A.13(2)(b) of the Superannuation Industry (Supervision) Regulations 1994. The provision referenced contains the defined term 'base amount allocated to the non-member spouse'. This amendment ensures the reference in paragraph 7A.13(2)(b) remains accurate following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [38] – Subparagraph 7A.13(2)(c)(i)
Item 38 omits "regulation 28 and subregulation 31(2A) of the Family Law (Superannuation) Regulations 2001" and substitutes "section 51 and subsection 53(2) of the Family Law (Superannuation) Regulations 2025" in subparagraph 7A.13(2)(c)(i) of the Superannuation Industry (Supervision) Regulations 1994. The provisions referenced deal with determining the gross value of superannuation interests in the growth phase. The provisions will be relocated to new sections on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures the references in subparagraph 7A.13(2)(c)(i) remain accurate.
Item [39] – Subparagraph 7A.13(2)(c)(iii)
Item 39 omits "Part 5 of the Family Law (Superannuation) Regulations 2001" and substitutes "Part 6 of the Family Law (Superannuation) Regulations 2025" in subparagraph 7A.13(2)(c)(iii) of the Superannuation Industry (Supervision) Regulations 1994. The Part that is referenced deals with determining the value of certain superannuation interests for the member spouse. The Part will be relocated on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment ensures subparagraph 7A.13(2)(c)(iii) contains an accurate reference to the new Part.
Item [40] – Division 7A.4 (heading)
Item 40 repeals the heading "Division 7A.4—Superannuation interest split under the Family Law (Superannuation) Regulations 2001" and substitutes it with a new heading "Division 7A.4—Superannuation interest split under the Family Law (Superannuation) Regulations 2025" in the Superannuation Industry (Supervision) Regulations 1994. This amendment ensures the correct legislative instrument title is used in the heading, on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [41] – Regulation 7A.19
Item 41 repeals and substitutes Regulation 7A.19 which is an application provision relating to a family law superannuation interest split. The amendment ensures the correct subdivision is referenced following the repeal of the 2001 Regulations and the commencement of the 2025 Regulations.
Item [42] – Subparagraph 13.16(2)(f)(ii) and (iii)
Item 42 omits "Division 2.2 of the Family Law (Superannuation) Regulations 2001" and substitutes "Part 3 of the Family Law (Superannuation) Regulations 2025" in subparagraph 13.16(2)(f)(ii) and (iii) of the Superannuation Industry (Supervision) Regulations 1994. The Division that is referenced deals with superannuation interests that cannot be split using a superannuation agreement, flag lifting agreement or family law court order. The relevant provisions will be relocated from a Division into a Part, on the repeal of the 2001 Regulations and the commencement of the 2025 Regulations. This amendment would ensure subparagraphs 13.16(2)(f)(ii) and (iii) contain an accurate reference to the new Part.
Part 2 – Repeal of the Family Law (Superannuation) Regulations 2001
Family Law (Superannuation) Regulations 2001
Item [43] – The whole of the instrument
This item repeals the 2001 Regulations which will be replaced by the 2025 Regulations on 1 April 2025. A table providing a comparison of the provision numbers between the 2001 Regulations and the 2025 Regulations is at Attachment C.
ATTACHMENT C
Comparison table of provisions – 2001 Regulations and 2025 Regulations
This is a table providing a comparison of the provision numbers between the 2001 Regulations and the 2025 Regulations. As the order of some provisions has changed, the provision numbers in the table are not always consecutive. Furthermore, not every provision, subdivision or division in the 2001 Regulations has a corresponding provision, subdivision or division in the 2025 Regulations, as indicated in the table.
| Provision number 2001 Regulations (where applicable) | Provision number in 2025 Regulations (where applicable) |
| Part 1 – Preliminary | Part 1 - Preliminary |
| 1 | 1 |
| (No corresponding provision) | 2 |
| (No corresponding provision) | 3 |
| 3 (and 45) | 4 |
| 4 | N/A |
| (No corresponding provision) | 5 |
| 5 | 6 |
| 6 | 7 |
| 7 | 8 |
| 8 | 9 |
| 9 | 10 |
| 9A | 11 |
| 9B | (No corresponding provision) |
| 10 | 12 |
| 10A | 13 |
| 11 | 14 |
| 11A | 15 |
| Part 2 – Payments that are not splittable payments | Part 2 - Payments that are not splittable payments: payments of a particular character, or payments after death of member spouse |
| Division 2.1 – General | (No corresponding division) |
| 12 | 16 |
| 13 | 17 |
| Division 2.2—Particular circumstances in which payments are not splittable payments | Part 3 – Payments that are not splittable payments: payments made in particular circumstances |
| (No corresponding division) | Division 2—Circumstances when payments are not splittable payments |
| 14 | 20 |
| (No corresponding division) | Division 1 – Preliminary |
| (No corresponding provision) | 18 |
| 14A | 19 |
| (No corresponding division) | Division 3 – When the payment relates to a superannuation interest that is not a percentage-only interest |
| (No corresponding subdivision) | Subdivision A—New interest created, or amount transferred or rolled over or paid, under SIS Regulations or RSA Regulations, in satisfaction of the non-member spouse's entitlement |
| 14F | 21 |
| (No corresponding subdivision) | Subdivision B—New interest otherwise created, or amount otherwise transferred or rolled over or paid, by trustee, or separate entitlement arising, in satisfaction of non-member spouse's entitlement under agreement or order |
| 14G(1) | 22(1) |
| 14G(3) to (6), and 14G(12) | 23 |
| 14G(6A) and (7A) | 24 |
| 14G(7) | 22(2) |
| 14G(8) to (11) | 25 |
| (No corresponding division) | Division 4—When the payment relates to a superannuation interest that is a percentage only interest |
| (No corresponding subdivision) | Subdivision A—New interest created, or amount transferred or rolled over or paid, by trustee, or separate entitlement arising, in satisfaction of non-member spouse's entitlement under agreement or order |
| 14N(1) and (2) | (No corresponding provision) |
| 14N(6) | 26(2) |
| 14N(3) to (5), and 14N(8) | 27 |
| 14N(5A) and (6A) | 28 |
| 14N(7) | 29 |
| 14N(8) | (No corresponding provision) |
| (No corresponding subdivision) | Subdivision B—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 |
| 14P(1) | 30 |
| 14P(2) | (No corresponding provision) |
| 14P(3) to (8), and 14P(10) | 31 |
| 14P(9) | 32 |
| (No corresponding subdivision) | Subdivision C—New annuity established or amount transferred or rolled over or paid by trustee of a superannuation annuity (other than under Subdivision B) in satisfaction of non-member spouse's entitlement under agreement or order |
| 14Q(1) | 33 |
| 14Q(2) | (No corresponding provision) |
| 14Q(3) to (6), and 14Q(8) | 34 |
| 14Q(7) | 35 |
| (No corresponding division) | Division 5—When the payment by the member spouse is in satisfaction of the non-member spouse's entitlement under agreement or order |
| 14H | 36 |
| Part 3 - Payment splitting or flagging by agreement | Part 4—Payment splitting or flagging by agreement |
| Division 3.1—Superannuation interest that is not a percentage-only interest | Division 1—Superannuation interest that is not a percentage only interest |
| 15 | 37 |
| 16 | 38 |
| 17 | 39 |
| Division 3.2—Superannuation interest that is a percentage only interest | Division 2—Superannuation interest that is a percentage-only interest |
| 18 | 40 |
| 19 | 41 |
| 19A | 42 |
| Division 3.3—Miscellaneous | (No corresponding division) |
| 20 | (No corresponding provision) |
| Part 4—Payment splitting or flagging by court order | Part 5—Payment splitting or flagging by court order |
| (No division that exactly corresponds) | Division 1—Simplified outline |
| Division 4.1—Superannuation interest that is not a percentage only interest | (See Part 5, Division 2 below) |
| 21 | (No corresponding provision) |
| (No corresponding provision) | 43 |
| (See Division 4.1 above) | Division 2—Superannuation interest that is not a percentage only interest |
| (No corresponding subdivision) | Subdivision A—Determining the value of the superannuation interest of the member spouse |
| 22 | 44 |
| 24 | 45 |
| (No corresponding subdivision) | Subdivision B—Calculating the amount the non-member spouse is entitled to be paid in respect of certain superannuation interests of the member spouse |
| 23 | 46 |
| Division 4.2—Superannuation interest that is a percentage only interest | Division 3—Superannuation interest that is a percentage only interest |
| 25 | 47 |
| 26 | 48 |
| 26A | 49 |
| Part 5—Determination of amount in relation to certain superannuation interests | Part 6—Determining the value of certain superannuation interests of member spouses |
| Division 5.1—Superannuation interest in growth phase at relevant date | Division 1—Determining the value of superannuation interests in the growth phase at the relevant date |
| 27 | 50 |
| 28 | 51 |
| 29 | 52(1) to (4) |
| 30 | 52(5) |
| 31 | 53 |
| (No corresponding provision) | 54 |
| 32 | 55 |
| 33 | 56 |
| 35 | 57 |
| 36 | 58 |
| 37 | 59 |
| (No corresponding provision) | 60 |
| (No corresponding provision) | 61 |
| 38 | 62 |
| Division 5.2—Superannuation interest in payment phase at relevant date | Division 2—Determining the value of superannuation interests in the payment phase at the relevant date |
| 39 | 63 |
| 40 | 64 |
| 41 | 65 |
| 42 | 66 |
| 43 | 67 |
| (No corresponding provision) | 68 |
| (No corresponding provision) | 69 |
| 43A | 70 |
| Part 6—Entitlement of non-member spouse in respect of certain superannuation interests | Part 7—Entitlement of non-member spouse in respect of certain superannuation interests |
| (No corresponding division) | Division 1—Preliminary |
| (No corresponding subdivision) | Subdivision A—Simplified outline of this Part |
| (No corresponding provision) | 71 |
| Division 6.1—Interpretation | Subdivision B—Interpretation |
| 44 | 72 |
| Division 6.1A—Adjustment of base amount | Subdivision C—Adjustments to the base amount for superannuation interests in the growth phase |
| 45 | 4 |
| 45A | 73 |
| 45B | 75 |
| 45C | 74 |
| 45D | 76 |
| Division 6.2—Superannuation interest in growth phase at date of service of agreement or date of order | Division 2—Superannuation interest in growth phase at date of service of agreement or date of order |
| (No corresponding subdivision) | Subdivision A—Preliminary |
| (No corresponding provision) | 77 |
| 46 | 78 |
| (No corresponding provision) | 79 |
| (No corresponding subdivision) | Subdivision B – First splittable payment that the member spouse or other person is entitled to receive is a lump sum |
| 49 | 80 |
| 50 | 81 |
| 51 | 82 |
| (No corresponding subdivision) | Subdivision C – Optional lump sum relating to the whole or part of the adjusted base amount |
| 52 | 83 |
| 53 | 84 |
| (No corresponding subdivision) | Subdivision D – No benefit payable only as a lump sum, or first splittable payment is not a lump sum |
| 54 | 85 |
| 54A | 86 |
| Division 6.3—Superannuation interest in payment phase at date of service of agreement or date of order | Division 3—Superannuation interest in payment phase at date of service of agreement or date of order |
| (No corresponding subdivision) | Subdivision A—Preliminary |
| Subdivision 6.3.1—Application of Division 6.3 | (No corresponding subdivision) |
| (No corresponding provision) | 87 |
| 55 | 88 |
| Subdivision 6.3.2—First or only payment split | Subdivision B—First or only payment split |
| 55A | 89 |
| 56 | 90 |
| 57 | 91 |
| 58 | 92 |
| 58A | 93 |
| Subdivision 6.3.3—Second or later payment split | Subdivision C – Second or later payment split |
| 58B | 94 |
| 58C | 95 |
| 58D | 96 |
| 58E | 97 |
| Part 7—General provisions about payment splitting | (No corresponding part) |
| Division 7.1—General | Part 8 – Fees payable to trustee and waiver of rights |
| 59 | 98 |
| 60 | 99 |
| Division 7.2—Provision of information to and by trustee | Part 9 – Provision of information to and by trustee |
| (No corresponding division) | Division 1 - Preliminary |
| (No corresponding provision) | 100 |
| 61 | 101 |
| (No corresponding division) | Division 2 – Declaration accompanying application for information about a superannuation interest |
| 62 | 102 |
| (No corresponding division) | Division 3 - Information provided by trustee about superannuation interests |
| (No corresponding subdivision) | Subdivision A – Information about certain accumulation interests |
| 63(1), 63(7) and 63(8) | 103 |
| 63(2) | 104 |
| 63(3) | 105 |
| 63(4) | 106 |
| 63(4A) and 63A | 107 |
| 63(5) | 108 |
| 63(6)-(6B) | 109 |
| (No corresponding subdivision) | Subdivision B – Information about certain defined benefit interests |
| 64(1) and 64A(1) | 110 |
| 64(2) | 111 |
| 64(3), 64A(3), (5) and (7) | 112 |
| 64(4), 64A(4) to (7) | 113 |
| 64(4A) | 114 |
| 64(5) | 115 |
| 64(6)-(7B) | 116 |
| 65 | 117 |
| (No corresponding subdivision) | Subdivision C – Information about certain percentage-only interests |
| 66(1) | 118 |
| 66(2) | 119 |
| 66(3) | 120 |
| 66(3A) | 121 |
| 66(4) | 122 |
| 66(4A) | 123 |
| 66(5) | 124 |
| 66(6) | 125 |
| (No corresponding subdivision) | Subdivision D – Information about certain innovative superannuation interests |
| (No corresponding provision) | 126 |
| (No corresponding provision) | 127 |
| (No corresponding provision) | 128 |
| (No corresponding provision) | 129 |
| (No corresponding provision) | 130 |
| (No corresponding provision) | 131 |
| (No corresponding subdivision) | Subdivision E – Information about interests in self managed superannuation funds |
| 67(1) | 132 |
| 67(2) | 133 |
| 67(3) | 134 |
| 67(4) | 135 |
| 67(5) | 136 |
| (No corresponding subdivision) | Subdivision F – Information about small superannuation accounts interests |
| 68 | 137 |
| (No corresponding subdivision) | Subdivision G – Information about certain interests for which an agreement or splitting order applies |
| 68A(1)-(3) | 138 |
| 68A(4) | 139 |
| (No corresponding subdivision) | Subdivision H – How and when trustee must provide information |
| 68B | 140 |
| (No corresponding subdivision) | Subdivision I – Certain secondary government trustees not required to provide information |
| 69 | 141 |
| (No corresponding subdivision) | Subdivision J – Information provided by trustee to non-member spouse |
| 70 | 142 |
| 71 | 143 |
| 72 | 144 |
| Part 8—Application, saving and transitional provisions | Part 10 – Transitional arrangements |
| (No corresponding division) | Division 1 – Transitional arrangements for the commencement of this instrument |
| 73 | (No corresponding provision) |
| 74 | (No corresponding provision) |
| (No corresponding provision) | 145 |
| 75 | 146 |
| SCHEDULES | |
| Schedule 1 – Forms | Schedule 1 – Forms |
| Schedule 1A – Value of non-member spouse's entitlement for percentage only interest in superannuation fund or approved deposit fund in payment phase | Schedule 2 – Value of non-member spouse's entitlement for percentage only interest in superannuation fund or approved deposit fund in payment phase |
| Part 1 – Preliminary | Part 1 – Preliminary |
| Part 2 – Method for subparagraphs 90XJ(1)(b)(i) and 90YN(1)(b)(i), and paragraphs 90XT(1)(c) and 90YY(1)(c), of the Act | Part 2 – Method for subparagraphs 90XJ(1)(b)(i) and 90YN(1)(b)(i), and paragraphs 90XT(1)(c) and 90YY(1)(c), of the Act |
| Part 3 – Method for subparagraphs 90XJ(1)(b)(ii) and 90YN(1)(b)(ii), and paragraphs 90XT(1)(b) and 90YY(1)(b), of the Act | Part 3 – Method for subparagraphs 90XJ(1)(b)(ii) and 90YN(1)(b)(ii), and paragraphs 90XT(1)(b) and 90YY(1)(b), of the Act |
| Part 4 – Reversion valuation factors | Part 4 – Reversion valuation factors |
| Schedule 2 – Method for determining gross value of defined benefit interest | Schedule 3 – Method for determining gross value of defined benefit interest |
| Part 1 – Preliminary | Part 1 – Preliminary |
| Part 2 – Interest relating to current employment –benefit payable only as lump sum | Part 2 – Interest relating to current employment – benefit payable only as lump sum |
| Part 3 – Interest relating to current employment – benefit payable only as pension | (No corresponding part) |
| (No corresponding part) | Part 3 – Interest relating to current employment – benefit payable only as pension, and member spouse's age is 65 years or less |
| (No corresponding part) | Part 4 – Interest relating to current employment – benefit payable only as pension, and member spouse's age is more than 65 years |
| Part 4 – Interest relating to current employment – benefit payable as combination of lump sum and pension | Part 5 – Interest relating to current employment – benefit payable as combination of lump sum and pension |
| Part 5 – Interest relating to former employment –benefit payable only as lump sum | Part 6 – Interest relating to former employment – benefit payable only as lump sum |
| Part 6 – Interest relating to former employment – benefit payable only as pension | Part 7 – Interest relating to former employment – benefit payable only as pension |
| Part 7 – Interest relating to former employment – benefit payable as combination of lump sum and pension | Part 8 – Interest relating to former employment – benefit payable as combination of lump sum and pension |
| Schedule 3 – Method for determining gross value of partially vested accumulation interest | Schedule 4 – Method for determining gross value of partially vested accumulation interest |
| Schedule 4 – Method for determining gross value of superannuation interest payable as life pension | Schedule 5 – Method for determining gross value of superannuation interest payable as life pension (otherwise than due to invalidity) |
| (No corresponding part) | Part 1 – Preliminary |
| (No corresponding part) | Part 2 – Interest has no guarantee period, or guarantee period has already ended |
| (No corresponding part) | Part 3 – Interest has a guarantee period that is yet to end |
| (No corresponding division) | Division 1 – Application and method |
| (No corresponding division) | Division 2 – Present value of the pension payable for the remaining part of the guarantee period |
| (No corresponding division) | Division 3 – Present value of the pension payable after the end of the guarantee period |
| Schedule 4A – Method for determining value of superannuation interest in lifetime annuity | Schedule 6 – Method for determining value of superannuation interest in lifetime annuity |
| (No corresponding schedule) | Schedule 7 – Method for determining gross value of superannuation interest payable as life pension due to invalidity |
| Schedule 5 – Method for determining gross value of superannuation interest payable as fixed term pension | Schedule 8 – Method for determining gross value of superannuation interest payable as fixed term pension |
| Schedule 5A – Method for determining value of superannuation interest in fixed term annuity | Schedule 9 – Method for determining value of superannuation interest in fixed term annuity |
| Schedule 6 – Method for determining gross value of superannuation interest payable as pension and future lump sum | Schedule 10 – Method for determining gross value of superannuation interest payable as pension and future lump sum |
| (No corresponding schedule) | Schedule 11 – Method for determining transition factor for calculating the amount to be paid to the non-member spouse |
| Schedule 7 – Modifications of Division 6.2 | Schedule 12 – Modifications of Division 2 of Part 7 |