Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment (No. 2) Approval 2022 (Cth)
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) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment (No. 2) Approval 2022 (Cth) (the instrument) amends the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (Cth) to ensure that references to the Family Law Act 1975 (Cth) (FLA) are correct.
These changes are required as a consequence of the renumbering of Part VIIIB of the FLA, following the Civil Law and Justice Legislation Amendment Act 2018 (Cth) (CLJLAA), and the commencement of Part VIIIC of the FLA, inserted by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth) (WA Superannuation Splitting Act). The instrument also updates a reference to the Superannuation (CSS) Former Eligible Employees Regulations 1986 (Cth).
This instrument is made under Regulations 38 and 43A of the Family Law (Superannuation) Regulations 2001 (Cth), and is a legislative instrument for the purposes of the Legislation Act 2003 (Cth).
Details of the instrument are set out in Attachment A.
CONSULTATION
No consultation was undertaken by the Attorney-General’s Department prior to making the instrument. This is because the amendments are consequential to the CLJLAA and the WA Superannuation Splitting Act, which had their own consultation processes. No further consultation was necessary. Consultation was also not considered necessary to amend the reference to the Superannuation (CSS) Former Eligible Employees Regulations 1986 (Cth).
REGULATION IMPACT STATEMENT
The Office of Best Practice Regulation was consulted about this instrument and has advised that a Regulatory Impact Statement is not required (OBPR ID 22-02163).
Attachment A
Details of the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment (No. 2) Approval 2022 (Cth)
Section 1 – Name
This section provides that this instrument is the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment (No. 2) Approval 2022 (Cth).
Section 2 – Commencement
This section provides for the instrument to commence on the later of:
a) the start of the day after the instrument is registered, and
b) immediately after the commencement of the Superannuation Legislation Amendment (Western Australia De Facto Superannuation Splitting) Regulations 2021 (Cth).
Section 3 – Authority
This section provides that the instrument is made under regulations 38 and 43A of the Family Law (Superannuation) Regulations 2001 (Cth).
Section 4 – Schedules
This section provides that each instrument that is specified in a Schedule to the 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
Item 1 – Section 3 (definition of spouse)
Item 1 amends section 3 by repealing the definition of spouse, and substituting the definition of spouse to have the meaning given by section 90XD of the FLA. This amendment reflects that the CLJLAA renumbered Part VIIIB of the FLA, changing section 90MD to 90XD. Item 1 also removes the note after section 3 which clarified that ‘spouse is defined in section 90MD of the Act as a party to a marriage.’ This clarification is not necessary, and is no longer correct as the definition of spouse in section 90XD of the FLA now refers to both parties to a marriage, and parties to a de facto relationship.
Item 2 – Subclause 1(1) of Part 1 of Schedule 1 (definition of the Regulations)
Item 2 amends the definition of the Regulations in subclause 1(1) of Part 1 of Schedule 1 by replacing the reference to ‘Superannuation (CSS) Former Eligible Employees Regulations’ with ‘Superannuation (CSS) Former Eligible Employees Regulations 1986’. This amendment reflects that the title of the Regulations was amended to include a year in its name, to reflect a more modern drafting style.
Item 3 – Clause 3 of Part 105 of Schedule 10 (table item 1, column headed “Method or factor”, paragraphs (c) and (e) of the definition of ARB)
Item 3 amends Clause 3 of Part 105 of Schedule 10 (table item 1, column headed “Method or factor”, paragraphs (c) and (e) of the definition of ARB) by replacing the reference to ‘90MZB’ with ‘section 90XZB or 90YZR’. This amendment reflects that the CLJLAA renumbered Part VIIIB of the FLA, changing section 90MZB to 90XZB. It also extends the operation of the clause to apply to Western Australian de facto couples by inserting a reference to section 90YZR in Part VIIIC of the FLA.