Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2019

Administered by Attorney-General's Department

Legislation au F2019L00401 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by the Authority of the Attorney-General

Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2019

Introduction

This instrument is made under regulation 38 of the Family Law (Superannuation) Regulations 2001 (FLS Regulations) and is a legislative instrument under section 8 of the Legislation Act 2003.

Outline

The State Authorities Non-contributory Superannuation Act 1987 (NSW) (SANCS Act) was amended by the State Authorities Non-contributory Superannuation Amendment Act 2013 (NSW) (SANCS Amendment Act) to require NSW Public Sector Employers to pay an additional monthly superannuation contribution to employees in certain NSW public sector superannuation schemes.

The SANCS Amendment Act requires that an additional employer contributions account (AEC account) be established for each eligible member for the purposes of holding the new contribution.

Part VIIIB of the Family Law Act 1975 (Family Law Act) provides for the division of superannuation between married and de facto couples in the event of a relationship breakdown. SANCS Scheme interests are superannuation interests as defined by section 90MD of the Family Law Act, and are subject to the superannuation splitting regime under the Family Law Act.

To facilitate superannuation splitting, the FLS Regulations provide ‘default’ methods and factors for valuing superannuation interests. The default methods and factors are not appropriate for all superannuation interests. Regulation 38 of the FLS Regulations provides that the AttorneyGeneral may approve, in writing, alternative valuation methods. The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (the Approval) has been made for this purpose. It contains methods and factors for determining the value of superannuation interests in more than 30 superannuation schemes. The Approval is a legislative instrument and has been registered on the Federal Register of Legislation. The method and factors approved for SANCS Scheme interests are set out in Part 9 of Schedule 2 of the Approval.

This instrument amends the Approval to ensure that the valuation method for SANCS Scheme interests takes into account the additional employer contributions provided for in the SANCS Amendment Act.

Consultation

In accordance with section 17 of the Legislation Act 2003, consultation on this instrument occurred between the Commonwealth Attorney-General’s Department, the New South Wales Treasury and the Australian Government Actuary.

Regulatory Impact Statement

The Office of Best Practice Regulation was consulted about the Determination and advised that a Regulatory Impact Statement is not required as the amendments are minor and machinery in nature.

Commencement

The instrument commences on the day after registration on the Federal Register of Legislation.

The instrument is a legislative amendment for the purposes of the Legislation Act 2003.

Details of the instrument are as follows:

Section 1 – Name

Section 1 provides that the title of the instrument is the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2019.

Section 2 – Commencement

Section 2 provides that the instrument commences on the day after the instrument is registered on the Federal Register of Legislation.

Section 3 – Authority

Section 3 provides that the instrument is made under regulation 38 of the FLS Regulations.

Section 4 – Schedules

Section 4 is a technical provision which provides that the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2003 is to be amended as set out in each applicable item.

Schedule 1—Amendments

Item 1 — Subclause 1(3) of Part 9 of Schedule 2 (Note 1, before “Commonwealth co-contribution account”

Item 1 provides that, for the purposes of Part 9 of the Approval, additional employer contributions account has the same meaning as defined in section 3 of the State Authorities Noncontributory Superannuation Act 1987 (NSW).

Item 2 — Clause 2 of Part 9 of Schedule 2 (table item 1, column headed “Method”)

Item 2 amends the method to be used to determine the interest for a contributing member in the SANCS Scheme by including a reference to the additional employer contributions (AEC).

Together with item 3, below, this will ensure that the balance of any AEC account will be taken into account when valuing the superannuation interest of a SANCS Scheme member.

Item 3 — Clause 2 of Part 9 of Schedule 2 (table item 1, column headed “Method”, at the end of the column)

Item 3 inserts an explanation of how to calculate AEC when using the new method to value the interest for a contributing member in the SANCS Scheme.

Together with item 2, above, this will ensure that the balance of any AEC account will be taken into account when valuing the superannuation interest of a SANCS Scheme member.

 

Overview

The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2019 was enacted to address the need for accurate valuation methods for superannuation interests in certain NSW public sector schemes, particularly in light of additional employer contributions required by the State Authorities Non-contributory Superannuation Amendment Act 2013. This legislative instrument is made under regulation 38 of the Family Law (Superannuation) Regulations 2001 and is a legislative instrument under the Legislation Act 2003. The policy objective of this amendment is to ensure that the additional employer contributions are appropriately considered when valuing superannuation interests for the purposes of relationship breakdowns under the Family Law Act 1975. The instrument amends the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 to reflect the changes introduced by the SANCS Amendment Act, thereby providing a more accurate and fair approach to superannuation splitting for eligible members.

Scope and Application

The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2019 applies to the valuation of superannuation interests, specifically within the State Authorities Non-contributory Superannuation Schemes (SANCS) in New South Wales. This legislation is pertinent to entities and individuals involved in NSW public sector superannuation schemes, where the SANCS Amendment Act mandates additional employer contributions. The amendment is designed to align with changes introduced by the SANCS Amendment Act, ensuring that these additional contributions are appropriately considered in the valuation of superannuation interests for the purposes of relationship breakdowns under the Family Law Act 1975. The instrument amends the existing Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003, extending its application to include the new additional employer contributions account. The legislative amendment ensures that the valuation method for SANCS Scheme interests now takes into account these additional contributions, thereby reflecting the changes in the scheme's financial structure accurately. The instrument's jurisdictional reach is federal, given its basis in the Family Law Act 1975, while its practical application is confined to superannuation interests within NSW public sector schemes.

Key Provisions

The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment Approval 2019 primarily amends the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (section 4). It introduces new methods and factors for valuing superannuation interests under the State Authorities Non-contributory Superannuation Scheme (SANCS) in New South Wales. This amendment ensures that the additional employer contributions (AEC) provided for in the State Authorities Non-contributory Superannuation Amendment Act 2013 (NSW) are considered when calculating the value of superannuation interests for eligible members. These amendments are aimed at providing a more accurate valuation of superannuation interests in the event of a relationship breakdown, particularly for those employed in the NSW public sector. The Act imposes several obligations on the parties and entities it governs. Firstly, it mandates that the NSW Public Sector Employers make additional monthly superannuation contributions to eligible employees (section 1 of the SANCS Amendment Act). Secondly, it requires the establishment of an additional employer contributions account (AEC account) for each eligible member to hold these new contributions (section 3 of the SANCS Amendment Act). Moreover, the Act mandates the use of specific methods and factors for valuing superannuation interests, as outlined in the amended Approval (section 4 of the FLS Regulations). These methods must now incorporate the additional employer contributions when determining the value of superannuation interests for SANCS Scheme members. Breach of the provisions outlined in this Act can result in various legal consequences. While the Act itself does not explicitly state penalties for non-compliance, failure to adhere to the requirements for superannuation contributions and account management could potentially lead to legal actions under other related legislation, such as the Superannuation Industry (Supervision) Act 1993. Additionally, inaccurate valuation of superannuation interests could have financial implications during the division of assets in family law proceedings, potentially leading to disputes and further legal actions. It is essential for all involved parties to comply with the amended methods and factors to ensure accurate and fair valuation of superannuation interests.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.