EXPLANATORY STATEMENT

Select Legislative Instrument 2005 No. 69

ISSUED BY AUTHORITY OF THE ATTORNEY-GENERAL

Family Law Act 1975

Family Law (Superannuation) Amendment Regulations 2005 (No. 1)

 

Subsection 125(1) of the Family Law Act 1975 (the Act) provides that the

Governor-General may make regulations, not inconsistent with the Act, prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

Part VIIIB of the Act provides for the division of superannuation between parties to a marriage on marriage breakdown or divorce.

The Family Law (Superannuation) Regulations 2001 (the Principal Regulations) contain much of the detail of the legislative scheme for the division of superannuation on marriage breakdown or divorce, including provisions for valuing superannuation interests and determining the entitlement of parties when superannuation is divided.

The purpose of the Family Law (Superannuation) Amendment Regulations 2005

(No. 1) (the Amendment Regulations) is to amend the Principal Regulations to narrow the class of superannuation interests in the Queensland Parliamentary Superannuation Fund that are prescribed as percentage-only interests.

Interests that are prescribed as percentage-only can only be split, under Part VIIIB of the Act, by reference to a percentage of future payments to be made to the member spouse.  They are also valued in property settlement proceedings under the Act by expert opinion evidence, rather than in accordance with valuation methods set out in the Principal Regulations.

The Queensland Government Superannuation Office requested, before Part VIIIB of the Act commenced in December 2002, that interests in the Queensland Parliamentary Superannuation Fund be prescribed as percentage-only interests as an interim measure while it further considered valuation methods for superannuation interests in the Fund.

Interests in the Queensland Parliamentary Superannuation Fund were prescribed as percentage-only interests by the Family Law (Superannuation) Amendment Regulations 2002 (No. 2).

As part of a package of measures, including amendments to the Parliamentary Contributory Superannuation Act 1970 (Qld) (the Queensland Act) made in 2003, the Queensland Government Superannuation Office subsequently requested the Commonwealth to prescribe a narrower class of superannuation interests in the Fund as percentage-only interests, and to approve, under the Principal Regulations, methods for valuing interests that current members of the Queensland Legislative Assembly, who have accrued future superannuation pension entitlements, have in the Fund.

The Amendment Regulations amends the Principal Regulations to limit the prescription of a superannuation interest in the Queensland Parliamentary Superannuation Fund as a percentage-only interest to:

• an interest held by a member of the Queensland Legislative Assembly who has less than 8 years service as such a member; and
• an interest held by a member of that Assembly who has 8 or more years of service where the interest was subject to a splitting order or agreement under Part VIIIB of the Act while it was a percentage-only interest and that order or agreement has not been terminated, set aside or paid out under amendments made to the Queensland Act in 2003.

Approval of the valuation methods requested by the Queensland Government Superannuation Office for interests in the Fund would be given under a separate instrument – amending the Family Law (Superannuation) (Methods and Factors for Valuing Particular Superannuation Interests) Approval 2003 – made under regulation 38 of the Principal Regulations.

The Amendment Regulations refers to the Queensland Act.  That Act may be viewed at the following website:

http://www.legislation.qld.gov.au/LEGISLTN/CURRENT/P/ParliContSupA70.pdf

A copy of the Queensland Act may be purchased from Goprint, through its bookshop, which is located at 371 Vulture Street, Woolloongabba, Queensland (telephone: 07 3246 3399).

Consultation on the content of the instrument was undertaken under section 17 of the Legislative Instruments Act 2003 with the Australian Government Actuary, the Queensland State Actuary and the Queensland Government Superannuation Office, by way of exchange of correspondence and discussions.