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.
Overview
The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment (No. 2) Approval 2022 (Cth) was enacted to address the need for updating references within the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (Cth) due to changes in the Family Law Act 1975 (Cth) (FLA) and the introduction of new legislation. This amendment follows the renumbering of Part VIIIB of the FLA, as a consequence of the Civil Law and Justice Legislation Amendment Act 2018 (Cth) (CLJLAA), and the introduction of Part VIIIC of the FLA 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 legislative instrument was made under Regulations 38 and 43A of the Family Law (Superannuation) Regulations 2001 (Cth) and is subject to the provisions of the Legislation Act 2003 (Cth). The instrument aims to ensure the accuracy and relevance of references within the existing approval instrument in light of recent legislative changes.
Scope and Application
The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment (No. 2) Approval 2022 (Cth) amends the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (Cth) to correct references within the FLA and other relevant regulations due to legislative changes. This instrument applies to entities and individuals involved in the valuation of superannuation interests under family law, particularly those governed by the FLA. It encompasses the entire Commonwealth of Australia, aligning with federal legislation. This amendment is necessary to ensure compliance with the renumbering of sections within the FLA as a result of the Civil Law and Justice Legislation Amendment Act 2018 (Cth) and the introduction of Part VIIIC under the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth). The instrument also updates references to the Superannuation (CSS) Former Eligible Employees Regulations 1986 (Cth). There are no exclusions or exemptions specified within the instrument itself, though its application may be further defined or restricted through subordinate instruments made under the Family Law (Superannuation) Regulations 2001 (Cth).
Key Provisions
The Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Amendment (No. 2) Approval 2022 (Cth) amends the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (Cth). This amendment is necessary due to the renumbering of Part VIIIB of the Family Law Act 1975 (Cth) (FLA) following the Civil Law and Justice Legislation Amendment Act 2018 (Cth) (CLJLAA), and the introduction of Part VIIIC of the FLA by the Family Law Amendment (Western Australia De Facto Superannuation Splitting and Bankruptcy) Act 2020 (Cth) (WA Superannuation Splitting Act). The key changes include updating references to the FLA and the Superannuation (CSS) Former Eligible Employees Regulations 1986 (Cth).
The obligations imposed by this amendment are primarily administrative and technical. It requires the updating of references within the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 (Cth) to ensure consistency with the latest legislative changes. Specifically, the amendment mandates the substitution of outdated section references with current ones, such as changing section 90MD to 90XD, and updating references to the Superannuation (CSS) Former Eligible Employees Regulations. This ensures that the approval reflects the correct legal framework and maintains the integrity of the family law system concerning superannuation interests.
There are no direct offences, penalties, or civil/criminal consequences specified for breaches of this instrument. However, the importance of maintaining accurate and updated legal references cannot be overstated. Non-compliance or failure to update these references could potentially lead to misinterpretation or misapplication of the law, which could have significant repercussions in family law proceedings involving superannuation interests. Such errors could undermine the fairness and effectiveness of the legal process, leading to possible legal disputes or challenges.
The instrument comes into effect on the later of two specified dates: the start of the day after the instrument is registered, and immediately after the commencement of the Superannuation Legislation Amendment (Western Australia De Facto Superannuation Splitting) Regulations 2021 (Cth). This ensures that the amendments are applied in a timely manner and align with other related legislative changes. The authority for making this instrument is derived from regulations 38 and 43A of the Family Law (Superannuation) Regulations 2001 (Cth). The instrument specifies amendments and repeals to existing instruments as outlined in the Schedule, ensuring that the changes are clear and enforceable within the legal framework.