Family Law (Superannuation) Legislation Amendment (2026 Measures No. 1) Instrument 2026

FAMILY LAW (SUPERANNUATION) LEGISLATION AMENDMENT (2026 MEASURES NO. 1) INSTRUMENT 2026

EXPLANATORY STATEMENT

Issued by authority of the Attorney-General

in compliance with section 15J of the Legislation Act 2003

PURPOSE AND OPERATION OF THE INSTRUMENT

The Family Law (Superannuation) Regulations 2025 (the Regulations) give effect to the distribution of superannuation payments under Parts VIIIB and VIIIC of the Family Law Act 1975 (Family Law Act).

The Regulations provide ‘default’ methods and factors for determining the gross value of a superannuation interest. Where those default methods and factors are not appropriate, subsections 62(1) of the Regulations authorise the Minister to approve, in writing, methods or factors for determining the gross value of superannuation interests in a particular superannuation plan.

These approved methods and factors (which can be broadly referred to as methodologies) are contained in the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2025 (Approval Instrument).

The purpose of the Family Law (Superannuation) Legislation Amendment (2026 Measures No. 1) Instrument 2026 (the Instrument) is to update family law valuation methodologies for interests in certain superannuation plans, to ensure those methodologies produce accurate and reasonable values. These updates are to add, change or remove methodologies for certain superannuation plans. The Instrument also repeals a particular information determination, which is a separate instrument that provides for the information that a trustee must provide about a superannuation interest. An overview of the amendments is set out below.

Northern Territory Government and Public Authorities’ Superannuation Scheme (NTGPASS)

The Instrument amends the Approval Instrument to include a method for determining the gross value of superannuation interests in the Northern Territory Government and Public Authorities’ Superannuation Scheme (NTGPASS).

Northern Territory Supplementary Superannuation Scheme (NTSSS)

The Instrument amends the Approval Instrument to include a method for determining the gross value of superannuation interests in the Northern Territory Supplementary Superannuation Scheme (NTSSS).

Ford Superannuation Plans

The Minister has previously approved a method for interests in the Ford Employees Superannuation Fund (now titled the Ford Superannuation Plan) and the Ford Management Retirement Plan. The method is contained within Part 30 in Schedule 10 to the Approval Instrument. The Instrument updates this method to ensure values are produced that reflect recent actuarial experience for members of the plan, and to reflect changes to the way interests in the plan are referred to as a result of a successor fund transfer to Mercer Superannuation (Australia) Limited.

GlaxoSmithKline Superannuation Plan

The Minister has previously approved factors, to be used in conjunction with a ‘default’ method in the Regulations, for superannuation interests held in the GlaxoSmithKline Superannuation Fund (now titled the GlaxoSmithKline Superannuation Plan). These methods are contained within Part 35 in Schedule 10 to the Approval Instrument. The Instrument updates the reference to the ‘default’ method contained in the Regulations and reflects changes to the way interests in the plan are referred to as a result of a successor fund transfer to Mercer Superannuation (Australia) Limited.

Hanson Australia Pty Limited as a participating employer in Sunsuper

The Minister has previously approved a method and factors for superannuation interests held in Hanson Australia Pty Limited as a participating employer in Sunsuper (Hanson). The method and factors are contained within Part 40 in Schedule 10 to the Approval Instrument. The Instrument removes the approved method and factors for superannuation interests in Hanson (since renamed to Heidelberg Materials Australia Superannuation Plan (Heidelberg)) from the Approval Instrument. The relevant methods and factors set out in the Regulations will now apply when valuing superannuation interests in Heidelberg.

RACV Superannuation Fund

The Minister has previously approved a method set out in the Regulations for superannuation interests held in the RACV Superannuation Fund (RACV). The approval of this method is contained within Part 90 in Schedule 10 to the Approval Instrument. The Instrument removes the approved method for superannuation interests in RACV from the Approval Instrument. The relevant ‘default’ method and factors in the Regulations will now apply when valuing superannuation interests in RACV.

Victorian Racing Industry Superannuation Fund

The Minister has previously approved a method to be used in conjunction with the methods and factors in the Regulations for superannuation interests held in the Victorian Racing Industry Superannuation Fund (Victorian Racing). These methods are contained within Part 110 in Schedule 10 to the Approval Instrument. The Instrument removes the method for superannuation interests in Victorian Racing from the Approval Instrument. AMP as trustee for Victorian Racing, has advised that the plan has no more members and has been wound up. Family law methods and factors are no longer required to value interests in Victorian Racing.

Victorian Racing also has an information determination instrument titled “Family Law (Superannuation) (Provision of Information - Victorian Racing Industry Superannuation Fund) Determination 2004”. As Victorian Racing has been wound up, the information determination instrument will be repealed as it is no longer required.

Woodside Superannuation Fund

The Minister has previously approved factors to be used in conjunction with a ‘default’ method in the Regulations, for superannuation interests held in the Woodside Superannuation Fund. These methods and factors are contained within Part 115 in Schedule 10 to the Approval Instrument. The Instrument makes some minor technical updates including to reference the correct ‘default’ method contained in the Regulations and to reflect changes to the way interests in the plan are referred to as a result of a successor fund transfer to Mercer Superannuation (Australia) Limited.

INCORPORATION BY REFERENCE

The Instrument incorporates territory legislation and other documents by reference. The territory legislation and other documents that are incorporated, and details on how to access them, are set out in the table below.  These details are current as at the making of the Instrument.

DISALLOWANCE AND SUNSETTING

In accordance with table item 3 in section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015, the Approval Instrument and the Instrument are not subject to disallowance, as each is an instrument (other than a regulation) relating to superannuation.

Superannuation trustees are responsible for proposing the valuation methodologies for inclusion in the Approval Instrument, as they are best placed to understand the design of their own superannuation plans and how they should be valued in a way that would ensure just and equitable outcomes for parties to family law property settlements. The Australian Government Actuary (AGA) reviews the trustee-proposed valuation methodologies, and the Minister may approve the methodologies on the recommendation of the AGA.

Permitting the Parliament to disallow the Instrument would be an inappropriate interference with it, as it simply reflects the methodologies that specific superannuation trustees have proposed following an actuarial assessment that they would produce accurate and reasonable family law valuations for interests in their superannuation plans.

In accordance with table item 6 in section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015 (LEOMR), the Instrument is not subject to sunsetting, as it is an instrument (other than a regulation) relating to superannuation. However, as the Instrument is an amending instrument, it will automatically be repealed upon commencement pursuant to subparagraph 48A(2)(a)(i) of the Legislation Act 2003 (Legislation Act), at which point it will have amended the Approval Instrument, which is itself not subject to sunsetting, also in accordance with table item 6 in section 11 of the LEOMR.

Superannuation trustees are best placed to advise when economic or demographic circumstances have sufficiently changed to necessitate updates to the methodologies in the Approval Instrument. Requiring the Approval Instrument to sunset would significantly hinder its intended function, which is to ensure that accurate and reasonable valuations of superannuation interests continue to be available for family law parties in the long term, unless and until superannuation trustees advise that changes are required. Changes to the methodology are only made by the Minister following a recommendation by the AGA.

CONSULTATION

In accordance with section 17 of the Legislation Act, the Attorney-General’s Department (Department) consulted with the trustees of the superannuation plans, that are the subject of the Instrument, to request that they review their approved valuation methodologies to ensure they are based on current actuarial assumptions. Trustees engaged actuaries to undertake those reviews, and then provided the outcomes of the reviews with proposed updates to their methodologies, to the Department for the Minister’s consideration and approval. The Department sought advice from the AGA as to whether the updates proposed by trustees were appropriate. The Department then made recommendations to the Minister on the basis of that advice.

The Department did not consult with members of the affected superannuation plans. The trustees of the superannuation plans proposed the changes on the basis of their own internal actuarial advice, and the AGA reviewed and endorsed those proposals. The AGA is uniquely placed, as an expert actuarial consultancy for the public sector, to review such proposals and to provide advice to the Department as the responsible agency for the administration of the FLS Regulations. Given the complex and technical nature of the changes, which would not be understood by individuals without actuarial expertise, it would not have been appropriate to consult with those members likely to be affected by the Instrument.

DETAILS OF THE INSTRUMENT

The Instrument is a legislative instrument for the purposes of the Legislation Act. Details of the Instrument are set out in Attachment A.

ATTACHMENT A

Details of the Family Law (Superannuation) Legislation Amendment (2026 Measures No. 1) Instrument 2026

This attachment sets out the details of the Family Law (Superannuation) Legislation Amendment (2026 Measures No. 1) Instrument 2026 (the Instrument).

Section 1 – Name

This section provides that the title of the Instrument is the Family Law (Superannuation) Legislation Amendment (2026 Measures No. 1) Instrument 2026.

Section 2 – Commencement

This section provides that the Instrument will commence on the day after the Instrument is registered on the Federal Register of Legislation.

Section 3 – Authority

This section provides that the Instrument is made under subsection 62(1) of the Family Law (Superannuation) Regulations 2025.

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. Any other item in a Schedule to this Instrument has effect according to its terms.

Schedule 1 – Amendments

Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2025

Item 1 – Schedule 9

Item 1 repeals Schedule 9 and substitutes a new Schedule, titled ‘Schedule 9 Public sector superannuation plans – Northern Territory’.

New Part 1 is for the Northern Territory Government and Public Authorities’ Superannuation Scheme.

Clause 1 of Part 1 of new Schedule 9 defines the Northern Territory Government and Public Authorities’ Superannuation Scheme as the scheme established by Part 3 of the Superannuation Act 1986 (NT).

Clause 2 of Part 1 of new Schedule 9 provides that, for an interest in the growth phase in that scheme, the method for section 5 of the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2025 is that the gross value of the superannuation interest on a date is equal to the value of the benefits (before any taxes or other charges have been deducted) that would have been payable in respect of the interest if the member spouse had voluntarily ceased to be a member of the Scheme on that date. This method is intended to represent that the gross value is the value of the vested benefit for the interest, before any taxes or other charges have been deducted.

New Part 2 is for the Northern Territory Supplementary Superannuation Scheme.

Clause 1 of Part 2 of new Schedule 9 defines the Northern Territory Supplementary Superannuation Scheme as the scheme established by an instrument made by the Treasurer of the Northern Territory on 4 January 1989.

Clause 2 of Part 2 of new Schedule 9 provides that, for an interest in the growth phase in that scheme, the method for section 5 of the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2025 is that the gross value of the superannuation interest on a date is equal to the value of the benefits (before any taxes or other charges have been deducted) that would have been payable in respect of the interest if the member spouse had voluntarily ceased to be a member of the Scheme on that date. This method is intended to represent that the gross value is the value of the vested benefit for the interest, before any taxes or other charges have been deducted.

Item 2 – Part 30 of Schedule 10

Item 2 repeals Part 30 and substitutes a new Part, titled ‘Part 30 Ford superannuation plans’.

Clause 1 of new Part 30 provides the following definitions:

Ford Employees Superannuation Plan means the plan of that name established in the Mercer Corporate Superannuation Division of the Mercer Super Trust in accordance with an agreement dated 23 December 2008 between Mercer Investment Nominees Limited (now Mercer Superannuation (Australia) Limited) and Ford Motor Company of Australia Limited.

Ford Management Superannuation Plan means the plan of that name established in the Mercer Corporate Superannuation Division of the Mercer Super Trust in accordance with an agreement dated 23 December 2008 between Mercer Investment Nominees Limited (now Mercer Superannuation (Australia) Limited) and Ford Motor Company of Australia Limited.

Mercer Super Trust means the trust of that name established by Deed dated 28 June 1995.

Clause 2 of new Part 30 provides that the method for an interest in the growth phase in either the Ford Employees Superannuation Plan or the Ford Management Superannuation Plan is the method in subclause 35(2) of Schedule 3 to the Regulations, but as if the reference in that subclause to 25% were a reference to 75%, and as if the reference in that subclause to 75% were a reference to 25%.

The method in subclause 35(2) of Schedule 3 to the Regulations is for determining the gross value of a defined benefit interest in the growth phase, held as a result of current employment of the member spouse, where benefits in respect of the interest are payable as a combination of a lump sum and a pension, and where there is no restriction on the proportion of the interest which may be taken as a lump sum or as a pension. The method is based on the assumption that 25% of the benefits will be taken as a lump sum and 75% of the benefits as a pension.

The method in Clause 2 of new Part 30 assumes that 75% of the benefits will be taken as a lump sum and 25% as a pension. This method is based on actuarial analysis of recent member experience of the two plans as at the making of the Instrument.

Item 3 – Part 35 of Schedule 10 (heading)

Item 3 omits “Fund” and substitutes “Plan” within the heading of Part 35 of Schedule 10. The heading is now titled ‘GlaxoSmithKline Superannuation Plan’.

Item 4 – Clause 1 of Part 35 of Schedule 10

Item 4 repeals clause 1 of Part 35 and substitutes a new clause 1.

New clause 1 of Part 35 provides the following definitions for members of the GlaxoSmithKline Superannuation Plan:

GlaxoSmithKline Superannuation Plan means the plan established in the Mercer Corporate Superannuation Division of the Mercer Super Trust in accordance with the Participation Agreement.

Mercer Super Trust means the trust established by Deed dated 28 June 1995.

Merged Glaxo Member has the meaning given by the Annexure to the Participation Agreement.

Participation Agreement means the agreement dated 30 June 2008 between Mercer Investment Nominees Limited (now Mercer Superannuation (Australia) Limited) and GlaxoSmithKline Australia Pty Ltd, as in force on 1 January 2014.

Item 5 – Clause 2 of Part 35 of Schedule 10 (heading)

Item 5 omits “Fund” and substitutes “Plan” within the heading of clause 2 of Part 35 of Schedule 10. The heading is now titled ‘Methods and factors for interests of members in the GlaxoSmithKline Superannuation Plan’.

Item 6 – Clause 2 of Part 35 of Schedule 10

Item 6 omits “Fund mentioned” and substitutes “Plan mentioned”.

Item 7 – Clause 2 of Part 35 of Schedule 10 (table item 1, column headed “Interest in the growth phase”)

Item 7 omits “Part 5 Member of the GlaxoSmithKline Superannuation Fund” and substitutes “Merged Glaxo Member of the GlaxoSmithKline Superannuation Plan”.

The purpose of items 3 to 7 is to reflect changes in the trust documentation arising from the plan undergoing a successor fund transfer to Mercer Superannuation (Australia) Limited in April 2023.

Item 8 – Clause 2 of Part 35 of Schedule 10 (table item 1, column headed “Method or factor”)

Item 8 omits “Schedule 3 of the 2001 Regulations” and substitutes “Schedule 4 to the Regulations”. The purpose of item 8 is to provide the method set out in clause 2 of Schedule 4 to the Regulations, which is used to determine the gross value of a partially vested accumulation interest. The Regulations remade the Family Law (Superannuation) Regulations 2001 (2001 Regulations), and Schedule 3 to the 2001 Regulations was replicated as Schedule 4 to the Regulations.

Item 9 – Parts 40, 90 and 110 of Schedule 10

Item 9 repeals Parts 40, 90 and 110 of Schedule 10.

Part 40 Hanson Australia Pty Limited as a participating employer in Sunsuper

The Minister has previously approved a method and factors for superannuation interests held in Hanson Australia Pty Limited as a participating employer in Sunsuper (Hanson). Hanson’s name has since changed to Heidelberg Materials Australia Superannuation Plan (Heidelberg) as a result of a successor fund transfer. The Australian Retirement Trust as trustee for Heidelberg has advised that the default methods and factors contained in the Regulations are suitable for interests in this plan, and this proposal was supported by the Australian Government Actuary (AGA). Part 40 is therefore no longer required and is removed from the Approval Instrument.

Part 90 RACV superannuation fund

The Minister has previously approved a method for superannuation interests held in RACV superannuation fund (RACV). The Australian Retirement Trust, as trustee for RACV as a result of a successor fund transfer, has advised that the default methods and factors contained in the Regulations 2025 are suitable for this plan, and this proposal was supported by the AGA. Part 90 is therefore no longer required and is removed from the Approval Instrument.

Part 110 Victorian Racing Industry Superannuation Fund

The Minister has previously approved methods for superannuation interests held in the Victorian Racing Industry Superannuation Fund (Victorian Racing) established by the Trust Deed dated 29 April 1964 and renamed, with effect on 16 August 2001. N.M. Superannuation Proprietary Limited (trading as AMP Super), as trustee for Victorian Racing as a result of a successor fund transfer, has advised that there are no members remaining who are receiving defined benefits, or who could receive defined benefits in the future. As such the defined benefit category of the employer plan for Victorian Racing has been wound up. Part 110 is therefore no longer required and is removed from the Approval Instrument.

Item 10 – Part 115 of Schedule 10 (heading)

Item 10 omits “Fund” and substitutes “Plan” for the heading of Part 115 of Schedule 10. The heading is now titled ‘Woodside Superannuation Plan’.

Item 11 – Clause 1 of Part 115 of Schedule 10

Item 11 repeals clause 1 of Part 115 and substitutes a new clause 1.

New clause 1 of Part 115 provides the following definitions for members of the Woodside Superannuation Plan:

Executive Member has the meaning given by the Annexure to the Participation Agreement.

Mercer Super Trust means the trust of that name established by Deed dated 28 June 1995.

Participation Agreement means the agreement dated 1 December 2003 between Mercer Investment Nominees Limited (now Mercer Superannuation (Australia) Limited) and Woodside Petroleum Limited (now Woodside Energy Group Limited), as in force on 20 October 2022.

Staff Member has the meaning given by the Annexure to the Participation Agreement.

Woodside Superannuation Plan means the plan established in the Mercer Corporate Superannuation Division of the Mercer Super Trust in accordance with the Participation Agreement.

Item 12 – Clause 2 of Part 115 of Schedule 10 (heading)

Item 12 omits “Fund” and substitutes “Plan” within the heading of Part 115 of Schedule 10. The heading is now titled ‘Methods and factors for interests of members in the Woodside Superannuation Plan’.

Item 13 – Clause 2 of Part 115 of Schedule 10

Item 13 omits “Fund mentioned” and substitutes “Plan mentioned”.

Item 14 – Clause 2 of Part 115 of Schedule 10 (table item 1, column headed “Interest in growth phase”)

Item 14 omits all words after “person has”, and substitutes with “as an Executive Member or Staff Member of the Woodside Superannuation Plan”.

The purpose of items 10 to 14 is to reflect changes in the trust documentation arising from the plan undergoing a successor fund transfer to Mercer Superannuation (Australia) Limited.

Item 15 – Clause 2 of Part 115 of Schedule 10 (table item 1, column headed “Method or factor”)

Item 15 omits “Schedule 2 to the 2001 Regulations” and substitutes “Schedule 3 to the Regulations”. The purpose of item 15 is to provide the method set out in clause 3 of Schedule 3 to the Regulations, which is used to determine the value of an interest relating to current employment where the benefit is payable only as lump sum. The Regulations remade the Family Law (Superannuation) Regulations 2001 (2001 Regulations), and Schedule 2 to the 2001 Regulations was replicated as Schedule 3 to the Regulations.

Schedule 2 – Repeals

Family Law (Superannuation) (Provision of Information — Victorian Racing Industry Superannuation Fund) Determination 2004

Item 1 – The whole of the instrument

Item 1 repeals the instrument titled Family Law (Superannuation) (Provision of Information — Victorian Racing Industry Superannuation Fund) Determination 2004. As Victorian Racing has been wound up, this information determination for this particular plan is no longer required.